Ruiz v. Covello ( 2021 )

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 DANIEL JOSE RUIZ, Case No. 21-cv-07395-RMI 7 Petitioner, ORDER g v. 9 PATRICK COVELLO, 10 Respondent. 11 12 Petitioner, a state prisoner, filed a pro se petition for a writ of habeas corpus pursuant to 28 13 || U.S.C. § 2254. He also consented to the jurisdiction of a Magistrate Judge. dkt. 5. Petitioner 14 || indicates that a habeas petition is still pending in state court and he intends to seek a stay in this 3 15 case. dkt 1 at 5. However, no motion for a stay has been filed. A 16 The United States Supreme Court has held that a district court may stay mixed habeas 2 17 petitions to allow the petitioner to exhaust in state court. Rhines v. Weber, 544 U.S. 269, 277-78 S 18 || (2005). Rhines requires a petitioner to show (1) “good cause” for his failure to exhaust his claims 19 || in state court; (2) that his unexhausted claims are not “plainly meritless”; and (3) that he has not 20 || engaged in “intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 278. 21 If petitioner seeks to stay this case, he must file a motion for a stay within twenty-one 22 || days of service of this order addressing the Rhines factors set forth above. Failure to file a motion 23 || for astay may result in this petition being dismissed. 24 IT IS SO ORDERED. 25 Dated: December 2, 2021 26 Mt Z 27 RQBERT M. ILLMAN 28 United States Magistrate Judge