Lavontahe Brown v. M. Biter

Filing 30

MINUTES (IN CHAMBERS) ORDER Requiring Response Regarding California Supreme Court Habeas Petition by Magistrate Judge Kenly Kiya Kato, Petitioner is, therefore, ordered to file a response in writing no later than August 29, 2017 notifying the Court whether his Unexhausted Claim is now exhausted(SEE ORDER FOR DETAILS) (dts)

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

CV 14-3934-MMM (KK)

Date: August 9, 2017

Title: Lavontahe Brown v. M. Biter

Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE
DEB TAYLOR

Not Reported

Deputy Clerk

Court Reporter

Attorney(s) Present for Plaintiff(s):

Attorney(s) Present for Defendant(s):

None Present

None Present

Proceedings:

Order Requiring Response Regarding California Supreme Court Habeas
Petition

On April 31, 2014, Petitioner constructively filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (“Petition”). ECF Docket No. (“Dkt.”) 1. The Petition appeared
to contain two claims, one of which Petitioner conceded was unexhausted. Id. at 5-6, 12-13, 49-59
On October 27, 2014, the Court granted Petitioner a Kelly stay to exhaust the Petition’s
unexhausted claim: Whether the trial court erred when it refused to instruct the jury on assault
with a deadly weapon (“Unexhausted Claim”). Dkts. 13; 1 at 5, 49-59. Despite multiple orders
to update the Court on the status of Petitioner’s exhaustion efforts, Petitioner has repeatedly
failed to provide the Court with the requested information. Nevertheless, according to the
Court’s review of the California Courts website, it appears Petitioner filed a state habeas petition
in the California Supreme Court on April 17, 2017 and that the California Supreme Court denied
the petition on June 28, 2017. See California Courts, Appellate Courts Case Information, Docket
(Aug. 8, 2017, 10:03 AM) http://appellatecases.courtinfo.ca.gov/search/case/
mainCaseScreen.cfm?dist=0&doc_id=2190896&doc_no=S241294&search=party&start=1.
Petitioner is, therefore, ordered to file a response in writing no later than August 29, 2017
notifying the Court whether his Unexhausted Claim is now exhausted pursuant to one of the
following two options:

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Option A: If the April 17, 2017 state habeas petition in the California Supreme Court
included Petitioner’s Unexhausted Claim, Petitioner must advise this Court of the
California Supreme Court’s decision. Petitioner must also (1) request that this Court lift
the Kelly stay and (2) file a motion to amend the Petition to include the newly exhausted
claim.
Option B: If the April 17, 2017 state habeas petition in the California Supreme Court did
not include Petitioner’s unexhausted claim, Petitioner is once again ordered to respond to
the Court’s August 2, 2016 Order to Show Cause Why Kelly Stay Should Not Be Vacated
For Failure to File a Status Report (“OSC”) and inform the Court of the status of his
exhaustion efforts in state court. Petitioner is cautioned if it appears to the Court that he
has abandoned his efforts to exhaust the Unexhausted Claim, the Court may lift the Kelly
stay and prohibit Petitioner from amending the Petition to raise any additional claims in
this action.
Petitioner is expressly warned that failure to timely file a response to this Order will
result in the Kelly stay being lifted, Petitioner being prohibited from amending the Petition
to raise any additional claims in this action, and/or this action being dismissed with
prejudice for his failure to comply with Court orders and failure to prosecute. See Fed. R.
Civ. P. 41(b).
IT IS SO ORDERED.

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