holding that district courts have the discretion to stay and hold in abeyance, rather than dismiss, a mixed habeas petition
How later courts described this case
- holding that district courts have the discretion to stay and hold in abeyance, rather than dismiss, a mixed habeas petition
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES —- GENERAL
Case No. CV 20-02051-PA (DFM) Date: September 14, 2020
Title John Christopher Brown v. Josie Gastelo
Present: The Honorable Douglas F. McCormick, United States Magistrate Judge
| Nancy Boehme Not Present
| Deputy Clerk Court Reporter
Attorney(s) for Plaintiff(s): Attorney(s) for Defendant(s):
Not Present Not Present
Proceedings: (IN CHAMBERS) ORDER TO SHOW CAUSE
Petitioner filed his petition for writ of habeas corpus in March 2020. See Dkt. 1 (“Petition”).
In June 2020, Respondent filed a motion to dismiss claiming Petitioner’s fourth ground for relief
was unexhausted—.e., he had not presented it to the California Supreme Court. Petitioner
acknowledges that he did not raise this claim in his petition for review in the state supreme court
(see Petition at 3), and the copy of the petition for review that he attached to his federal habeas
petition bears this out (see Dkt. 1-3 at 1-75.).
Accordingly, on July 9, 2020, the Court ordered Petitioner (see Dkt. 16) to choose by July
30, 2020, between two options:
1. Petitioner may request a stay and abeyance of the mixed Petition while he exhausts
Ground Four in the California Supreme Court. See Rhines v. Weber, 544 U.S. 269, 277 (2005)
(holding that district courts have the discretion to stay and hold in abeyance, rather than dismiss, a
mixed habeas petition). Such a stay is not automatic, however. This Court can grant a stay only if
Petitioner demonstrates “good cause” for the failure to exhaust in state court, that the claims are
not plainly meritless, and that he is not using intentionally dilatory litigation tactics. If Petitioner
chooses this option, he must explain why he did not raise Ground Four in the California Supreme
Court.
2. Petitioner may voluntarily dismiss Ground Four of his Petition, and the Court will
proceed to the merits of his remaining exhausted claims. If he chooses this option, Petitioner is
(12/02) CIVIL MINUTES-GENERAL Initials of Deputy Clerk: nb
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CENTRAL DISTRIC T OF CALIFORNIA
CIVIL MINUTES – GENERAL
warned that this Court will likely be foreclosed from ever considering Ground Four in a successive
petition.
The Court warned Petitioner that if Petitioner did nothing, the Court would recommend
that the Petitioner be dismissed as mixed. See id. This case was then transferred to the
undersigned magistrate judge. See Dkt. 19.
Petitioner’s deadline has passed, but it appears that he may not have received the Court’s
order. See Dkt. 17 (notice of change of address filed after Court issued order and asking Court for
“next step in [his] proceedings”). The Clerk is directed to attach a copy of the Court’s July 9 order
(Dkt. 16) to the copy of this minute orders served on Petitioner.
Additionally, on or before twenty-one (21) days of the date of this order, Plaintiff is
ORDERED to show good cause in writing why the Court should not recommend dismissal of
this action without prejudice as mixed and for failure to prosecute. Alternatively, Petitioner
may file with this Court a notice of election, stating either that he seeks a stay of his case to
exhaust his fourth ground or that he voluntarily dismisses his fourth ground.
Petitioner is expressly warned that his failure to timely comply with this Order may
result in the Petition being dismissed for the reasons stated above and for failure to prosecute.