(HC) Baca v. Robertson

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA JAMES MARTIN BACA, No. 2:22-cv-01481 TLN KJN P 12 Petitioner, 13 v. ORDER JAMES ROBERTSON, 15 Respondent.

17 Petitioner is a state prisoner, proceeding pro se and in forma pauperis, with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 11, 2022, petitioner was provided the options relevant to addressing his unexhausted claims. On November 21, 2022, petitioner responded, claiming he requests to stay this action pending exhaustion of his state court remedies (option 3). However, petitioner may not simply request a stay. Rather, he must persuade the court that he is entitled to a stay under Rhines v. Weber, 544 U.S. 269 (2005).

23 The prior order set forth option three as follows: 24 3. Petitioner may file a request to stay this action pending exhaustion of state court remedies with respect to the unexhausted claim 25 pursuant to Rhines v. Weber, 544 U.S. 269 (2005). Under Rhines, the court may stay a habeas petition containing exhausted and 26 unexhausted claims if petitioner demonstrates (1) good cause for the failure to previously exhaust the claims in state court, (2) the claims 27 at issue are potentially meritorious, and (3) petitioner has been diligent in pursuing relief. Id. at 277-78; see also Mena v. Long, 813 28 F.3d 907, 910-12 (9th Cir. 2016). Petitioner must satisfy all three ] factors to request a Rhines stay. Ifthe court grants the request for a Rhines stay, the entire federal habeas petition including the 2 unexhausted claim will be put on hold. Petitioner is not required to file an amended federal habeas petition.

4 | (ECF No. 9 at 3-4.) In addition to requesting a stay, petitioner must set forth facts and evidence, || if any, that demonstrate he is entitled to a stay under Rhines.' In other words, petitioner must || address each of the three factors set forth in Rhines by setting forth specific facts that demonstrate || petitioner has (1) good cause for his failure to previously exhaust the claims in state court, (2) the g || unexhausted claims at issue are potentially meritorious, and (3) petitioner has been diligent in | pursuing relief. Petitioner is required to address and demonstrate all three factors required under | Rhines.

11 In accordance with the above, IT IS HEREBY ORDERED that petitioner is granted thirty || days to file a request for stay that provides good cause for his failure to previously exhaust such || claims, and specifically addresses each factor set forth above. Petitioner is cautioned that failure || to comply with this order will result in an order striking the unexhausted claims and proceeding || solely on his first three claims that were exhausted by their inclusion in the petition for review | filed in the California Supreme Court.

17 || Dated: December 2, 2022 18 Ad 19 KENDALL].

UNITED STATES MAGISTRATE JUDGE | . .

Petitioner is not required to await resolution of the request for stay before returning to state || court to properly exhaust his state court remedies. In the event that petitioner exhausts any claims in the California Supreme Court prior to this court’s resolution of the request for stay, petitioner is | advised to file a notice of exhaustion in this court.