(HC) Garner v. Diaz

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA — 10 — 11 JAMES GARNER, No. 2:20-cv-02143 DB P 12 Petitioner, 13 v. ORDER 14 RALPH DIAZ, 15 Respondent. — 16 — 17 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a 18 writ of habeas corpus under 28 U.S.C. § 2254 . Petitioner challenges his 2017 conviction in 19 Sacramento County Superior Court. Before the court is petitioner’s motion for stay and 20 abeyance. (ECF No. 8.) For the reasons stated below, the court will deny petitioner motion 21 without prejudice. 22 MOTION FOR STAY AND ABEYANCE 23 Petitioner requests that the court stay the present action for purposes of exhaustion. (Id. at 24 1.) This request is made pursuant to Rhines v. Weber, 544 U.S. 269 (2005). (Id.) 25 Under Rhines, a district court may stay a mixed habeas petition if the following conditions 26 are met: (1) “the petitioner had good cause for his failure to exhaust,” (2) “his unexhausted claims 27 are potentially meritorious,” and (3) “there is no indication that the petitioner engaged in 28 intentionally dilatory litigation tactics.” 544 U.S. at 278 . The Supreme Court has made clear that 1 this option “should be available only in limited circumstances.” Id. at 277 . For purposes of a stay 2 under Rhines, whether the petitioner has good cause for his failure to exhaust “turns on whether 3 the petitioner can set forth a reasonable excuse, supported by sufficient evidence, to justify that 4 failure.” Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014) (citing Pace v. DiGuglielmo, 544 5 U.S. 408, 416 (2005)). A stay granted pursuant to Rhines may not be indefinite; reasonable time 6 limits must be imposed on a petitioner's return to state court. 544 U.S. at 277-78 . 7 Petitioner’s request states simply that he requests a stay while he seeks to exhaust his 8 claims in state court. (ECF No. 8 at 1.) Petitioner has not include in his motion any explanation 9 for the failure to exhaust his claims in state court prior to bringing the present action. (See Id.) 10 As such, petitioner’s motion does not establish good cause for his failure to exhaust. Blake, 745 11 F.3d at 982. Accordingly, petitioner’s motion for stay will be denied without prejudice to its 12 renewal. In any subsequent motion for stay and abeyance of this action under Rhines, petitioner 13 must ensure that the requirements for such a stay, as briefly summarized above, are met and 14 established in the petitioner’s motion. 15 CONCLUSION 16 For the foregoing reasons, IT IS HEREBY ORDERED that petitioner’s motion for stay 17 (ECF No. 8) is denied without prejudice. 18 DATED: November 1, 2021 — 19 — — 20 — — 21 — — 22 — — 23 — 24 DB:14 DB/DB Prisoner Inbox/Habeas/S/garn2143.denystay — 25 — — 26 — — 27 — — 28 —