Ernest Christopher Moore v. L S McEwen

Filing 36

MINUTE (IN CHAMBERS) by Magistrate Judge Douglas F. McCormick: ORDER TO SHOW CAUSE (mt)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-07248-DOC (DFM)

Title

Ernest Christopher Moore v. L.S. McEwen

Present: The Honorable

Date

February 16, 2016

Douglas F. McCormick

Deputy Clerk:

Court Reporter / Recorder:

Terri Steele

n/a

Attorney(s) Present for Plaintiffs:

Attorney(s) Present for Defendants:

n/a

n/a

Proceedings:

(In Chambers) Order to Show Cause

When this Court granted Petitioner’s request for a Kelly stay on February 25, 2013, it
required Petitioner to file a Status Report every 90 days updating the Court on the status of
Petitioner’s state habeas petitions. Petitioner initially filed Status Reports every 90 days. After
Petitioner failed to file a status report for several months, the Court ordered Petitioner to file a
status report within 28 days on November 6, 2014. Petitioner filed a status report on December 3,
2014, in which he indicated that the filing of a habeas petition in the California Supreme Court was
“imminent.” He also indicated that if he would voluntarily dismiss his pending federal habeas
petition if a habeas petition was not filed in the California Supreme Court by December 15, 2014.
On July 10, 2015, this Court issued an order directing Petitioner to submit a status report
within twenty-one days. On July 27, 2015, Petitioner submitted a letter in which he updated the
Court on his efforts to exhaust his state remedies. Dkt. 35. Petitioner indicated that he “will dismiss
his federal habeas petition if doing so will not bar him from seeking federal relief in the future.” Id.
Petitioner then “request[s] to have his federal habeas petition dismissed in the interest of justice.”
Id.
Petitioner is expressly forewarned that a dismissal may in fact bar him from seeking federal
relief in the future. As this Court has previously advised Petitioner, see Dkt. 17, the AEDPA
contains a one-year limitation period that may bar Petitioner from seeking relief if he dismisses the
current petition. Put differently, a dismissal of Petitioner’s claims may result in no federal court
ever reviewing any of Petitioner’s claims, including the exhausted claim (Ground One—insufficient
evidence) that was included in Petitioner’s original petition.
At the same time, this Court notes that the order granting Petitioner a Kelly stay in 2013
informed Petitioner that he must exhaust his state remedies with respect to Ground Two
“diligently” and “expeditiously.” See Dkt. 17 at 6. Petitioner has failed to do so.
CV-90 (10/08)

CIVIL MINUTES - GENERAL

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-07248-DOC (DFM)

Date

Title

February 16, 2016

Ernest Christopher Moore v. L.S. McEwen

Accordingly, the Court ORDERS Petitioner to show cause in writing within thirty (30) days
of this order why the Kelly stay ordered in 2013 should not be vacated to allow this case to proceed
to the merits on Ground One of the Petition. If Petitioner wishes to file a notice of dismissal of the
petition, notwithstanding the warnings above, such a notice would be deemed an adequate
response to the Court’s order.

:
Initials of Clerk

CV-90 (10/08)

CIVIL MINUTES - GENERAL

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