Olsen v. Obenland

4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA CHRISTOPHER WILLIAM OLSEN , Case No. 3:19-cv-06111-BHS-TLF 7 Petitioner, v. ORDER GRANTING SECOND 8 MOTION TO STAY AND ABEY MICHAEL OBENLAND, Respondent.

11 This matter is before the Court on Petitioner’s second motion to stay and abey this matter. Dkt. 26. Petitioner’s motion states that Respondent, while not waiving any arguments or defenses, does not oppose Petitioner’s motion to stay. Dkt. 26 at 3.

14 Petitioner previously sought a stay of this matter after counsel was appointed, in order to draft an amended petition. Dkt. 15. On June 3, 2020, the Court granted the stay, and subsequently granted two extensions. Dkts. 16, 18, 20. On November 12, 2020, Petitioner requested that the stay be lifted and sought leave to file a proposed amended petition. Dkt. 21. The Court granted Petitioner’s motion on December 9, 2020 and directed the Clerk to file the amended petition. Dkt. 23. Petitioner now seeks an additional stay, on the ground that he has recently filed a Personal Restraint Petition (“PRP”) in state court and, depending on the court’s ruling, may further amend his petition in this matter. Dkt. 23 at 2.

1 When faced with a mixed petition of exhausted and unexhausted claims, a district court may generally exercise one of three options: (1) dismiss the mixed petition without prejudice to allow the petitioner to present his unexhausted claims to the state court and then return to federal court to file a new habeas petition containing all of the claims; (2) stay the mixed petition to allow the petitioner to present his unexhausted claims to the state court and then return to federal court for review of his perfected petition; and (3) allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims. See Rhines v. Weber, 544 U.S. 269, 274-79 (2005). The Court may stay a petition and hold the proceedings in abeyance where the stay would be a proper exercise of discretion. Id., at 276. A stay is appropriate where the petitioner is attempting to properly exhaust claims in state court. Id. Here, it appears that Petitioner is attempting to exhaust state remedies, and the Washington courts should rule in the state court proceedings in the near future. Therefore, the requested stay appears appropriate.

15 Therefore, it is ORDERED as follows: 16 (1) Petitioner’s unopposed motion to stay proceedings is GRANTED; this matter 17 is stayed and abeyed pending further order of the Court; and 18 (2) Petitioner is directed to notify the Court within thirty (30) days of resolution of 19 his state court proceedings and to provide the Court with a status report of his // // // // 1 state court proceedings on February 26, 2021 and every ninety (90) 2 days thereafter.

3 Dated this 18th day of December, 2020.

A Theresa L. Fricke 7 United States Magistrate Judge