Clarke v. State of California et al

Filing 20

ORDER Requiring Petitioner To File Response, Thirty Day Deadline (Doc. 7 , 11 ), signed by Magistrate Judge Jennifer L. Thurston on 9/13/2013. (First Amended Complaint due by 10/16/2013) (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STANLEY CLARKE,

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Petitioner,
v.
STATE OF CALIFORNIA, MADERA
COUNTY PROBTION DEPARTMENT,
Respondent.

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Case No.: 1:13-cv-00049-JLT
ORDER REQUIRING PETITIONER TO FILE
RESPONSE
THIRTY DAY DEADLINE

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

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The instant petition was filed on January 11, 2013. After a preliminary review of the petition

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indicated that it contained only unexhausted claims, on January 23, 2013, the Court issued an Order to

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Show Cause why the petition should not be dismissed as entirely unexhausted. (Doc. 3). That Order

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to Show Cause gave Petitioner thirty days within which to file a response. Petitioner has never filed a

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response to the Order to Show Cause.

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However, on February 22, 2013, Petitioner filed a motion to amend the petition, indicating that

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he wished to amend the original petition to include newly exhausted claims. (Doc. 6). Petitioner did

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not identify those claims he was exhausting or had exhausted, nor did he indicate whether those claims

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were the same claims as those contained in the original petition or instead were new claims never

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before presented to this Court. Also on February 22, 2013, Petitioner filed a motion to stay

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proceedings pending exhaustion of certain claims which, again, were never identified. (Doc. 7). Once

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again, Petitioner failed to explain whether the stay was simply until he finished exhausting the claims

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already raised in the original petition, or whether he was now seeking to exhaust additional new claim.

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On March 21, 2013, Petitioner filed a second motion to amend the petition, which again did not

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identify the claims Petitioner was seeking to exhaust. The motion appears to be entirely duplicative of

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the motion to amend filed on February 22, 2013.

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On March 1, 2013, Petitioner filed a motion to disqualify United States District Judge assigned

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to this case, Hon. Lawrence O’Neill. (Doc. 8). The Court issued an order denying the motion to

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disqualify on March 6, 2013. (Doc. 10). On March 21, 2013, before the Court could rule on

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Petitioner’s pending motions to amend and motion to stay, Petitioner filed an unauthorized

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interlocutory appeal to the United States Court of Appeals for the Ninth Circuit on March 21, 2013.

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(Doc. 13). At that point, this Court was divested of jurisdiction to proceed on the petition. On June

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20, 2013, the Ninth Circuit dismissed the appeal as an improper interlocutory appeal and mandate

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issued on July 16, 2013, thus returning jurisdiction to this Court. (Docs. 16 & 17).

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Upon the return of jurisdiction to this Court, the Court re-assessed the case’s procedural

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posture but was still unable to discern precisely what Petitioner wished to do regarding his various

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exhausted and unexhausted claims. Accordingly, on August 8, 2013, the Court issued an order

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requiring Petitioner to file a response within thirty days that would indicate which claims had been

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exhausted and whether Petitioner wished to exhaust additional unexhausted claims. On September 6,

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2013, Petitioner filed a response to the Court’s August 8, 2013 order, indicating that he had fully

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exhausted both his original and all new claims, that he wished to file an amended petition containing

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his exhausted claims, and that a stay of proceedings was no longer required. (Doc. 19).

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ORDER

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Accordingly, it is HEREBY ORDERED as follows:

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

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amended petition containing all of the exhausted claims upon which Petitioner wishes to

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proceed. Petitioner is advised that the document should be entitled “First Amended

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Petition for Writ of Habeas Corpus.” The First Amended Petition will supersede the

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original petition and the original petition will be of no further legal effect in these

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proceedings. The First Amended Petition must be complete within itself and without

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reference to the original petition. Petitioner is advised that the amended petition must set

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forth all of Petitioner’s claims, including all the facts and arguments in support of those

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claims. Petitioner must allege constitutional violations which are cognizable on federal

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habeas review.
2. Petitioner’s motion to stay proceedings (Doc. 7) and motion for leave to amend (Doc. 11)

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are HEREBY DISREGARDED as moot.

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Petitioner is forewarned that his failure to comply with this Order may result in an

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Order of Dismissal or a Recommendation that the petition be dismissed pursuant to Local Rule

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110.

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IT IS SO ORDERED.
Dated:

September 13, 2013

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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