Dao v. Robertson
- William Orrick
- 3:19-cv-01074
- U.S. District Court · Northern District of California
- 2
In Dao v. Robertson, Judge Orrick granted Dao’s motion to stay federal habeas proceedings while he pursues unexhausted claims in state court.
Cuong Huy Dao’s federal habeas case is paused. Dao must pursue his unexhausted claims in the California Supreme Court and then follow the stated deadlines to seek reopening in federal court; J. Robertson is the respondent named in the case.
What happened
In Dao v. Robertson, Cuong Huy Dao asked to postpone and withdraw his federal habeas case. The court treated his request as a motion to pause the case so he could present claims that had not yet been pursued in state court.
The court granted the motion and stayed the federal case. Dao must file his unexhausted claims in the California Supreme Court within 90 days after the order. Within 30 days after that court decides those claims, Dao must ask the federal court to end the stay and reopen the case.
Judge William H. Orrick also required any reopening motion to include a complete amended petition on the court’s form and ordered the Clerk to administratively close the file while the stay remains in effect. The order did not decide the merits of Dao’s federal habeas claims.
The detailed version
- Dao v. Robertson · No. 3:19-cv-01074
- William Orrick
- July 9, 2020
Background
Cuong Huy Dao filed a federal habeas action against J. Robertson. Dao submitted a “Request for Postponement and Withdrawal of Federal Habeas Corpus.” The court construed that request as a motion to stay, meaning to pause, the federal habeas proceedings so Dao could exhaust claims in state court. Exhaustion here means presenting the claims to the state courts before asking the federal court to address them.
Ruling and requirements
The court granted the motion and stayed the action under Rhines v. Weber. Nothing further will take place in the case until the court determines that further action is appropriate or Dao satisfies the conditions for dissolving the stay.
Dao must file a petition containing his unexhausted claims in the California Supreme Court within 90 days of the order. Within 30 days after receiving a decision from that court on those claims, Dao must file a motion in this court to dissolve the stay and reopen the federal habeas proceedings.
Any motion to reopen must include an amended petition using the federal court’s form, identify the case number, and state “FIRST AMENDED PETITION” on the first page. Because an amended petition replaces earlier petitions, Dao must include every claim he wants to present and may not incorporate earlier material by reference. The Clerk was ordered to administratively close the file while the action is stayed.
Effect of the order
Judge William H. Orrick granted a procedural request to pause the federal case; he did not decide the merits of Dao’s habeas claims. The opinion does not state what those underlying claims are.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.