United States District Court

For the Northern District of California

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United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

CLETO SIQUEIROS,

Petitioner,

v.

KEN CLARK, Warden,

 Respondent.

______________________________

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No. C 08-2939 MMC (PR)

ORDER GRANTING MOTION TO

STAY PETITION; DIRECTING

CLERK TO ADMINISTRATIVELY

CLOSE FILE

(Docket No. 13)

On June 12, 2008, petitioner, a California prisoner proceeding pro se, filed the abovetitled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has filed

an answer to the petition, and petitioner has filed a traverse. It is undisputed that all of the

claims in the petition are exhausted. 

Now pending before the Court is petitioner’s motion, filed on the same date petitioner

filed his traverse, to stay the petition. Specifically, petitioner asserts, and has attached to his

motion exhibits in support of his assertions, that he has recently been informed by the Office

of the Public Defender of Santa Clara County that, in view of the decision of the California

Court of Appeal in People v. Uribe, 162 Cal. App. 4th 1457 (2008), petitioner’s case has

been referred to the Independent Defense Counsel Office for a determination whether a writ

of habeas corpus should be pursued on petitioner’s behalf. Specifically, petitioner was

convicted of rape and the commission of lewd or lascivious acts on a child under the age of

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United States District Court

For the Northern District of California

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fourteen, and Uribe held that because a videotape of a victim’s Sexual Assault Response

Team (SART) examination was favorable defense evidence under Brady v. Maryland, 373

U.S. 83 (1963), the prosecution’s failure to produce such evidence constituted a Brady

violation. Uribe, 162 Cal. App. 4th at 1463. 

District courts have inherent authority to issue stays where a stay would be a proper

exercise of discretion. Rhines v. Webber, 544 U.S. 269, 276 (2005). In particular, a district

court may stay a mixed habeas petition, i.e., a petition containing both exhausted and

unexhausted claims, to allow the petitioner to exhaust state court remedies as to those claims

that have not yet been presented to the state’s highest court. Id. at 277-78. Under such

circumstances, a stay and abeyance “is only appropriate when the district court determines

there was good cause for the petitioner’s failure to exhaust his claims first in state court,” the

claims are not meritless, and there are no intentionally dilatory litigation tactics by the

petitioner. Additionally, in King v. Ryan, 564 F.3d 1133, 1139, 1140 (9th Cir. 2009), the

Ninth Circuit clarified that a district court may, without a showing of good cause, stay a

fully-exhausted petition while the petitioner returns to state court to exhaust new claims. 

Once the claims are exhausted, however, the petitioner must amend his petition, within the

one-year limitations period set forth at 28 U.S.C. § 2244(d)(1), to add the newly-exhausted

claims. Id. at 1140-41.

Here, petitioner’s request for a stay does not fall directly under the holdings of either

Rhines or King. Rhines does not apply because the petition is not a mixed petition. King

also does not apply, because, even though the petition is fully exhausted, petitioner has not

said that he is returning to state court to exhaust a new claim based on Uribe. In the interest,

however, of providing the state courts with the opportunity to rule on any such claim prior to

this Court’s ruling on the merits of the instant petition, the Court will exercise its discretion

to grant petitioner a sixty-day stay of the instant proceedings to inform the Court whether

petitioner will return to state court to exhaust a newly-discovered Uribe claim. If petitioner

informs the Court that he intends to do so, the stay will be continued until such time

petitioner’s Uribe claim has been exhausted in state court. Alternatively, if petitioner

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informs the Court either that he does not intend to return to state court to exhaust a Uribe

claim, or fails to respond to this order within sixty days, the stay will be lifted and the

petition will be deemed ready for a decision on the merits. 

For the foregoing reasons, and good cause appearing, petitioner’s request for a stay is

hereby GRANTED, and the above-titled action is hereby STAYED for sixty days. 

The Clerk shall ADMINISTRATIVELY CLOSE the file pending the stay of this action.

This order terminates Docket No. 13. 

IT IS SO ORDERED.

DATED: July 8, 2010 /s/ Susan Illston 

 for MAXINE M. CHESNEY

United States District Judge

Case 3:08-cv-02939-MMC Document 15 Filed 07/08/10 Page 3 of 3