1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RUSSELL W. OTTO, No. 2:19-cv-00425 MCE GGH P 12 Petitioner, 13 v. ORDER AND FINDINGS AND

RECOMMENDATIONS

14 CYNTHIA TAMPKINS, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding in pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner’s motion to stay pursuant to 19 Rhines v. Weber, 544 U.S. 269 (2005). ECF No. 18. Respondent has filed an opposition. ECF 20 No. 19. 21 A district court may properly stay a habeas petition and hold it in abeyance pursuant to 22 Rhines v. Weber, 544 U.S. 269 (2005). See King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). 23 Under Rhines, a district court may stay a mixed petition to allow a petitioner to present an 24 unexhausted claim to the state courts. Rhines, 544 U.S. at 277. Assuming the petition itself has 25 been timely filed, such a stay “eliminates entirely any limitations issue with regard to the 26 originally unexhausted claims, as the claims remain pending in federal court[.]” King, 564 F.3d at 27 1140. A petitioner qualifies for a stay under Rhines so long as (1) good cause is shown for a 28 failure to have first exhausted the claims in state court; (2) the claim or claims at issue potentially 1 have merit; and (3) there has been no indication that petitioner has been intentionally dilatory in 2 pursuing the litigation. Rhines, 544 U.S. at 277-78. Although good cause does not require 3 “extraordinary circumstances,” courts must “interpret whether a petitioner has ‘good cause’ for a 4 failure to exhaust in light of the Supreme Court’s instruction in Rhines that the district court 5 should only stay mixed petitions in ‘limited circumstances.’” Wooten v. Kirkland, 540 F.3d 1019, 6 1024 (9th Cir. 2008) (quoting Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005)). The Ninth 7 Circuit has further rejected a “broad interpretation of ‘good cause.’” Wooten, 540 F.3d at 1024. 8 Instead, “good cause turns on whether the petitioner can set forth a reasonable excuse, supported 9 by sufficient evidence, to justify that failure.” Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014) 10 The court provides the entirety of petitioner’s argument found in his motion to stay: 11 I hereby request a stay per Rhines v. Weber, 544 U.S. 269 (2005). This petition is timely as I gave it to the Correctional Officer on 12 February 20, 2019. (1) The petition was denied a hearing in the Supreme Court and a Writ cannot form a second appeal. (2) This 13 petition has potential merit. It was accepted. (3) I have not been intentionally dilatory in pursuing the litigation. Rhines v. Weber, 14 544 U.S. at 277-78 (2005). 15 ECF No. 18 at 1. 16 However, as respondent has argued, petitioner has failed to satisfy the Rhines good cause 17 requirement. In his motion, petition merely provides conclusory statements without providing 18 sufficient details and evidence as required to support a stay and abeyance of a mixed petition. 19 Blake, 745 F.3d at 982 (“An assertion of good cause without evidentiary support will not 20 typically amount to a reasonable excuse justifying a petitioner's failure to exhaust.”) 21 Accordingly, the undersigned does not find that petitioner has established good cause pursuant to 22 Rhines. It will therefore be recommended that petitioner’s motion to stay be denied without 23 prejudice. 24 Before the court recommends dismissal of the habeas petition for failure to exhaust, 25 petitioner will be granted one more opportunity to amend his mixed petition to delete the 26 unexhausted claims and proceed on the exhausted claims only. Butler v. Long, 752 F.3d 1177, 27 1181 (9th Cir. 2014). However, petitioner is cautioned that if he chooses to proceed on an 28 amended petition raising only exhausted claims he will risk forfeiting consideration of the 1 unexhausted claims in this or any other federal court. See McCleskey v. Zant, 499 U.S. 467 2 (1991); see also Rose v. Lundy, 455 U.S. 509, 520-21 (1982); Rule 9(b), Rules Governing 3 Section 2254 Cases. If petitioner fails to amend his petition within the requisite timeframe, the 4 court will submit the September 4, 2019 findings and recommendations to the District Judge for 5 dismissal of the petition without prejudice of the mixed petition pending further exhaustion.1 6 IT IS HEREBY ORDERED that petitioner will be granted thirty days to file an amended 7 petition including only exhausted claims. If petitioner fails to file an amended petition within this 8 timeframe, the September 4, 2019 findings and recommendations will be submitted to the District 9 Judge assigned to the case for review. 10 IT IS HEREBY RECOMMENDED that petitioner’s motion to stay and hold the petition 11 in abeyance (ECF No. 18) be denied. 12 These findings and recommendations are submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 14 after being served with these findings and recommendations, any party may file written 15 objections with the court and serve a copy on all parties. Such a document should be captioned 16 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 17 objections shall be filed and served within fourteen days after service of the objections. The 18 parties are advised that failure to file objections within the specified time may waive the right to 19 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 Dated: November 4, 2019 /s/ Gregory G. Hollows 21

UNITED STATES MAGISTRATE JUDGE

22 23 24 25

26 1 The habeas corpus statute imposes a one year statute of limitations for filing non-capital habeas corpus petitions in federal court. In most cases, the one year period will start to run on the date on which 27 the state court judgment became final by the conclusion of direct review or the expiration of time for seeking direct review, although the statute of limitations is tolled while a properly filed application for 28 state post-conviction or other collateral review is pending. 28 U.S.C. § 2244(d).