Soliz v. Warden

Filing 34

ORDER signed by Magistrate Judge Theresa A. Goldner on 2/10/2009 denying as moot 26 Motion to Stay. (Lundstrom, T)

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1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ROSENDO SOLIZ, JR., 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. The instant petition was filed on December 6, 2006. (Doc. 1). On March 7, 2008, Respondent filed a motion to dismiss the petition as untimely under 28 U.S.C. 2244(d). (Doc. 16). On May 22, 2008, Petitioner filed the instant "Motion To `Stay And Hold In Abeyance' To Eliminate All Issues," indicating that he had claims he wished to exhaust in state court. (Doc. 26). On July 15, 2008, Respondent filed an opposition to the motion to stay, arguing that Petitioner had not even explained to the Court what issues he wished to exhaust. (Doc. 30). On July 28, 2008, Petitioner finally identified various issues he wished to exhaust through a stay of proceedings. (Doc. 32). Petitioner indicates that he only became aware of his claims after receiving assistance from another inmate. (Id.). On February 6, 2009, the Court issued findings and recommendations concluding that the instant petition is untimely and recommending that Respondent's motion to dismiss be granted. (Doc. 33). /// 1 ) ) Petitioner, ) ) v. ) ) ) WARDEN, CSP-LAC, ) ) Respondent. ) ____________________________________) 1:06-cv-01762-OWW-TAG HC ORDER DENYING MOTION FOR STAY (Doc. 26) UNITED STATES DISTRICT COURT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The purpose of granting a stay of proceedings is to permit a petitioner to fully exhaust in state court previously unexhausted claims in order that they may ultimately be amended to the already pending federal petition. However, where the federal petition itself is untimely and must be dismissed, the purpose of granting the stay and, ultimately, of permitting the resulting amendments, is vitiated. Here, as mentioned, the Court has concluded that the petition itself is untimely and must be dismissed. Accordingly, there would be no purpose in granting a stay of proceedings to permit Petitioner to exhaust additional claims since the petition itself is untimely and must be dismissed. Therefore, in light of the Court's findings and recommendations, Petitioner's motion to stay is moot. ORDER For the foregoing reasons, it is HEREBY ORDERED that Petitioner's motion to stay proceedings (Doc. 26), is DENIED as MOOT. IT IS SO ORDERED. Dated: February 10, 2009 j6eb3d /s/ Theresa A. Goldner UNITED STATES MAGISTRATE JUDGE 2

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