Whitaker v. Virga

Filing 22

ORDER REQUIRING PETITIONER to File a First Amended Petition Within Thirty (30) Days; ORDER DISREGARDING 20 Petitioner's Motion for File Additional Claims and 21 Petitioner's Motion for Order; and ORDER DIRECTING CLERK of Court to Administratively Re-Open Case, signed by Magistrate Judge Jennifer L. Thurston on 10/16/2012. (Attachments: # 1 2254 Petition Form). (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARCUS WHITAKER,
Petitioner,

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v.
WARDEN VIRGA,
Respondent.

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Case No.: 1:11-cv-01252-LJO-JLT
ORDER REQUIRING PETITIONER TO FILE A
FIRST AMENDED PETITION
THIRTY DAY DEADLINE
ORDER DISREGARDING PETITIONER’S
MOTION TO FILE ADDITIONAL CLAIMS (Doc.
20) AND MOTION FOR ORDER (Doc. 21)
ORDER DIRECTING CLERK OF COURT TO
SEND PETITIONER A FORM FOR FILING A
HABEAS CORPUS PETITION PURSUANT TO
§ 2254
ORDER DIRECTING CLERK OF COURT TO
ADMINISTRATIVELY RE-OPEN CASE

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Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
PROCEDURAL HISTORY
Petitioner filed his petition on July 29, 2011. (Doc. 1). Because only two of the four grounds
for relief in the original petition were exhausted in state court, Petitioner filed a motion to stay
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proceedings while he exhausted the unexhausted claims. (Doc. 3). On September 30, 2011, the Court

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granted Petitioner’s motion, stayed the proceedings pending exhaustion, and directed the Clerk of the

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Court to administratively close the case. (Doc. 9). That order required that Petitioner file regular

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status reports every sixty days to inform the Court of the status of Petitioner’s exhaustion efforts. It

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also required that, when Petitioner’s claims were finally exhausted, he must notify the Court within

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thirty days and either withdraw the unexhausted claims or advise the Court that the unexhausted

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claims had been exhausted.

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After the Court determined that, in case no. S198114, the California Supreme Court had denied
Petitioner’s habeas corpus petition on July 18, 2012, the Court, on September 7, 2012, ordered

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Petitioner to file a response indicating the status of his case. (Doc. 18). On September 13, 2012,

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Petitioner responded with two separate motions. The first motion was captioned a motion requesting

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to file additional claims, in which Petitioner appears to list two additional claims he wishes to present

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for habeas review. (Doc. 20). The second motion is for an order requiring Petitioner to file a

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response. (Doc. 21). The Court is unable to fathom the purpose behind the latter motion or the relief

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Petitioner is requesting. Based on the discussion below, the Court will disregard both.

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However, several points are clear at this stage of the proceedings. First, the original petition

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still contains two claims that appear to be unexhausted. As such, as mentioned previously, the petition

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is a mixed petition and cannot proceed. Either Petitioner must file an amended petition containing

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only exhausted claims or he must file a motion seeking to withdraw the two unexhausted claims from

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the original petition. If Petitioner choses the first option, he will resolve both the problem of the

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mixed petition and his desire to present additional exhausted claims to this Court. If he chooses the

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second option, he will not only have to withdraw the unexhausted claims but he will also have to file a

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motion to amend the original petition to include the newly exhausted claims.

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Petitioner is advised that this is a federal civil proceeding with formal rules of pleading and

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procedure. The Court cannot and will not simply cobble together a petition on Petitioner’s behalf

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based on scraps of claims contained in the original petition and scraps of claims contained in other

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Court filings. It is Petitioner’s responsibility, not that of this Court, to properly plead his claims

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in a cognizable form. As such, it is Petitioner’s choice how to proceed. The Court will grant
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Petitioner thirty days within which to either file an amended petition containing only exhausted

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claims or else to file motions to withdraw the unexhausted claims and to amend the original petition

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with newly exhausted claims, if any. Petitioner’s failure to follow one of these two avenues will result

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in a recommendation that the original petition be dismissed as a mixed petition.
ORDER

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Accordingly, it is HEREBY ORDERED as follows:

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1. Petitioner is ORDERED to file, within thirty days of the date of service of this order, a

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first amended petition containing only exhausted claims or else file a motion to withdraw

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the unexhausted claims in the original petition. If Petitioner chooses to file an amended

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petition, the amended petition should be clearly and boldly titled “FIRST AMENDED

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PETITION,” it must contain the appropriate case number, and it must be an original signed

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under penalty of perjury. The FIRST AMENDED PETITION must raise only claims that

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have been fully exhausted in state court by presenting those claims to the California

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Supreme Court, and they must allege violations of federal constitutional law. Petitioner

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should also note that every pleading to which an amendment or supplement is permitted

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must be retyped and filed so that it is complete in itself without reference to the prior or

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superseded pleading. Local Rule 220.
2. Petitioner’s motion to file additional claims (Doc. 20), and motion for order requiring

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Petitioner to file a response (Doc. 21), are DISREGARDED.

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3. The Clerk of the Court is DIRECTED to send Petitioner a form for filing a § 2254 habeas

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petition.

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4. The Clerk of the Court is DIRECTED to administratively re-open the case for further

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proceedings.

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Petitioner’s failure to comply with the Court’s order may result in a Recommendation that the
petition be dismissed.

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IT IS SO ORDERED.
Dated:

October 16, 2012

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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