Ordway v. Miller

Filing 16

ORDER Denying Without Prejudice Petitioner's Motion Requesting Evidentiary Hearing and Discovery 4 ; ORDER Denying Petitioner's Motion to Stay Without Prejudice, signed by Magistrate Judge Michael J. Seng on 10/30/11. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PATRICIA ANNE ORDWAY,

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Petitioner,
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v.
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MILLER, Warden,
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Respondent.
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________________________________)

1:11-cv-00616 MJS HC
ORDER DENYING WITHOUT
PREJUDICE PETITIONER’S MOTION
REQUESTING EVIDENTIARY HEARING
AND DISCOVERY

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ORDER DENYING PETITIONER’S
MOTION TO STAY WITHOUT
PREJUDICE

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[Docs. 4-5]

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254.
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Petitioner filed the present petition on April 21, 2011. Concurrently with the petition,
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Petitioner filed a motion to request an evidentiary hearing and production of discovery and a
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motion for stay and abeyance of the petition.
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With regard to Petitioner’s motion for evidentiary hearing and discovery, Petitioner’s
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request for discovery is denied without prejudice. By way of separate order, the Court directed
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Respondent to file a response to the Petition. Under Rule 5 of the Rules Governing Section
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U .S. D istrict C ourt
E. D . C alifornia

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2254 Cases, Respondent is required to indicate what transcripts are available, and attach to

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the response all relevant transcripts and copies of briefs and opinions of any post conviction

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proceedings initiated by Petitioner. See Rule 5(c)-(d). Petitioner shall be served with copies

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of the records filed with the response, and provided time to review the relevant documents.

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Should the records provided by Respondent not be adequate to address the issues presented

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in the response, Petitioner may file a renewed motion for discovery at that time. Therefore,

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Petitioner’s motion requesting discovery and an evidentiary hearing is DENIED without

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prejudice. (ECF No. 4.)

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Petitioner’s motion to stay the petition also is denied without prejudice. Petitioner has

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not provided the Court with sufficient documentation to determine whether Petitioner has

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presented the Court with a mixed petition that requires Petitioner to further exhaust her

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remedies in the state court nor provided any other basis for staying this action. Again, after

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receiving Respondent’s response and attached exhibits, Petitioner may move to stay the

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proceeding if appropriate. Therefore, Petitioner’s motion to stay the proceeding is DENIED

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without prejudice. (ECF No. 5.)

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IT IS SO ORDERED.

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Dated:
ci4d6

October 30, 2011

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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U .S. D istrict C ourt
E. D . C alifornia

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