Seriales v. Harrington

Filing 21

ORDER Granting Petitioner Thirty Days within which to File an Amended Petition; ORDER Directing the Clerk of the Court to Send Petitioner a Form for Filing a Habeas Petition; ORDER Granting Respondent's Motion to Vacate Briefing Schedule; ORDER Denying as Moot Petitioner's Motion for Ruling signed by Magistrate Judge Jennifer L. Thurston on 01/05/2010. Amended Complaint due by 1/8/2010. (Attachments: # 1 2254 Petition Form)(Flores, E)

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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 Petitioner is a prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. On August 21, 2009, the Court ordered Respondent to file a response to the petition and set a briefing schedule. (Doc. 12). On October 20, 2009, Respondent filed a motion to vacate the August 21, 2009 briefing schedule, alleging that Petitioner had filed a Petition for Review in the California Supreme Court seeking to exhaust certain state court claims, that the state court had ordered Respondent to file a response to the state petition, that a decision by the state court was expected by December 1, 2009, and that therefore the Court should modify the briefing schedule to permit ORDER DENYING AS MOOT PETITIONER'S MOTION FOR RULING (Doc. 18) ORDER GRANTING RESPONDENT'S MOTION TO VACATE BRIEFING SCHEDULE (Doc. 16) vs. K. HARRINGTON, Respondent. / KEITH SERIALES, Petitioner, 1:09-cv-00355-JLT (HC) ORDER GRANTING PETITION THIRTY DAYS WITHIN WHICH TO FILE AN AMENDED PETITION ORDER DIRECTING THE CLERK OF THE COURT TO SEND PETITIONER A FORM FOR FILING A HABEAS PETITION PURSUANT TO 28 U.S.C. 2254 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 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 Respondent to file a response, if any, at some point after the state court had issued its ruling. (Doc. 16). Petitioner filed a response to Respondent's motion, as well as a subsequent motion requesting a ruling on Respondent's motion by this Court. (Docs. 16; 18). On December 29, 2009, Petitioner filed a notice that the California Supreme Court had denied Petitioner's Petition for Review, thus exhausting his claims in state court. (Doc. 20). Because it now appears that the state court has issued its ruling on Petitioner's claims, the Court will permit Petitioner to file a motion to amend his original petition to include the newly exhausted claims. The Court will then conduct a preliminary screening of the amended petition to determine if a response is warranted. Under such circumstances, Respondent's motion to vacate the original briefing schedule will be granted. The Court's rulings render moot Petitioner's motion requesting a ruling. ORDER Accordingly, the Court HEREBY ORDERS as follows: 1. The Court GRANTS Petitioner thirty days from the date of service of this order to file an amended petition, which may include any original claims as well as newlyexhausted claims that Petitioner wishes to raise. If Petitioner does not choose to file an amended petition, the case will proceed on the original petition and claims contained therein. 2. The Clerk of the Court is DIRECTED to send Petitioner a form for filing a habeas corpus petition pursuant to 18 U.S.C. 2254. 3. Respondent's motion to vacate the briefing schedule (Doc. 16), is GRANTED. The briefing schedule of August 21, 2009, as set forth in Document 12, is vacated. The Court will issue a new briefing schedule, if appropriate, in due course. 4. Petitioner's motion for ruling (Doc. 18), is DENIED as MOOT. IT IS SO ORDERED. Dated: January 5, 2010 9j7khi /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE

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