Ruiz v. Covello

3 UNITED STATES DISTRICT COURT

4 NORTHERN DISTRICT OF CALIFORNIA

6 DANIEL JOSE RUIZ, Case No. 21-cv-07395-RMI 7 Petitioner,

ORDER g v.

9 PATRICK COVELLO,

Respondent.

Petitioner, a state prisoner, filed a pro se petition for a writ of habeas corpus pursuant to 28 || U.S.C. § 2254. He also consented to the jurisdiction of a Magistrate Judge. dkt. 5. Petitioner || indicates that a habeas petition is still pending in state court and he intends to seek a stay in this 15 case. dkt 1 at 5. However, no motion for a stay has been filed.

A 16 The United States Supreme Court has held that a district court may stay mixed habeas 17 petitions to allow the petitioner to exhaust in state court. Rhines v. Weber, 544 U.S. 269, 277-78 S 18 || (2005). Rhines requires a petitioner to show (1) “good cause” for his failure to exhaust his claims in state court; (2) that his unexhausted claims are not “plainly meritless”; and (3) that he has not engaged in “intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 278.

If petitioner seeks to stay this case, he must file a motion for a stay within twenty-one days of service of this order addressing the Rhines factors set forth above. Failure to file a motion for astay may result in this petition being dismissed.

IT IS SO ORDERED.

Dated: December 2, 2021

Mt Z

RQBERT M. ILLMAN

United States Magistrate Judge