Blyman v. Warden

Filing 17

ORDER Construing 7 8 15 Documents as a Motion for a Stay; ORDER Suspending the Deadline for Filing a Traverse until Petitioner's Motion for a Stay is Determined; ORDER Directing Petitioner to File a Supplemental Statement of Issues no Lat er than Thirty (30) Days After the Date of Service of this Order; ORDER Staying the Deadline for Petitioner's Filing a Traverse Pending Determination of Petitioner's Motion for a Stay; ORDER Setting a Briefing Schedule of Petitioner's Motion for a Stay signed by Magistrate Judge Barbara A. McAuliffe on 10/06/2014. (Flores, E)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 STEPHEN DANIEL BLYMAN, Case No. 1:14-cv-00836-LJO-BAM-HC 12 ORDER CONSTRUING DOCUMENTS AS A MOTION FOR A STAY PURSUANT TO RHINES AND KELLY (DOCS. 7, 8, 15) Petitioner, 13 ORDER SUSPENDING THE DEADLINE FOR FILING A TRAVERSE UNTIL PETITIONER’S MOTION FOR A STAY IS DETERMINED 14 15 16 ORDER DIRECTING PETITIONER TO FILE A SUPPLEMENTAL STATEMENT OF ISSUES NO LATER THAN THIRTY (30) DAYS AFTER THE DATE OF SERVICE OF THIS ORDER 17 18 19 20 ORDER STAYING THE DEADLINE FOR PETITIONER’S FILING A TRAVERSE PENDING DETERMINATION OF PETITIONER’S MOTION FOR A STAY v. 21 ORDER SETTING A BRIEFING SCHEDULE ON PETITIONER’S MOTION FOR A STAY 22 23 24 25 26 27 WARDEN, Respondent. RESPONDENT: OPPOSITION OR NOTICE OF NON-OPPOSITION TO BE FILED THIRTY (30) DAYS AFTER SERVICE OF PETITIONER’S SUPPLEMENTAL STATEMENT PETITIONER: REPLY TO ANY OPPOSITION MAY BE FILED NO LATER THAN THIRTY (30) DAYS AFTER SERVICE OF OPPOSITION 28 1 1 Petitioner is a state prisoner proceeding pro se and in forma 2 pauperis with a petition for writ of habeas corpus pursuant to 28 3 U.S.C. § 2254. The matter has been referred to the Magistrate Judge 4 pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 303. 5 Pending before the Court are various filings by Petitioner, 6 including a motion for a stay filed on June 16, 2014, and two 7 related documents filed on July 7 and September 26, 2014, which 8 relate to Petitioner’s motion for a stay, and which the Court 9 CONSTRUES as Petitioner’s motion for a stay of the instant 10 proceeding so that he may exhaust state court remedies as to 11 additional issues. 12 On September 8, 2014, Respondent filed an answer to the 13 petition in which Respondent addressed the merits of Petitioner’s 14 presently pending claims, which include a challenge to the exclusion 15 of evidence as a violation of Petitioner’s right to confrontation 16 and to present a defense, and a challenge to the failure to give a 17 unanimity instruction. However, Respondent did not file opposition 18 or notice of non-opposition to Petitioner’s motion for a stay. 19 In the motion for a stay, Petitioner explains some of the 20 circumstances that resulted in his not raising the additional 21 issues. However, Petitioner does not specifically identify the 22 additional issues that he desires to raise after exhaustion of state 23 court remedies. Without knowing exactly what claims, including 24 their legal and factual basis, Petitioner seeks to pursue and add to 25 the present proceeding, it would not be possible to evaluate the 26 nature and extent of any stay that should issue. Thus, Petitioner 27 will be given an opportunity to file a supplement to his motion in 28 which he specifically identifies the additional claims that he seeks 2 1 to exhaust and then to add to the petition. 2 Further, it would facilitate the efficient use of the Court’s 3 and the parties’ resources to have Respondent file opposition or 4 notice of non-opposition to the motion, including any pertinent 5 state court records. 6 Accordingly, it is ORDERED that: 7 1) Petitioner is DIRECTED to file no later than thirty (30) 8 days after the date of service of this order a supplement to his 9 motion for a stay in which he specifically identifies the claims, 10 including their factual and legal bases, for which he seeks a stay 11 to exhaust state court remedies; and 12 2) Respondent shall FILE opposition or notice of non- 13 opposition to Petitioner’s motion for a stay no later than thirty 14 (30) days after the date of service of Petitioner’s supplemental 15 specification of claims; and 16 3) Petitioner may FILE a reply to any opposition filed by 17 Respondent no later than thirty (30) days after the date of service 18 of the opposition; and 19 4) The deadline for the filing of Petitioner’s traverse to 20 Respondent’s answer is STAYED pending the determination of 21 Petitioner’s motion for a stay. 22 23 IT IS SO ORDERED. 24 25 Dated: /s/ Barbara October 6, 2014 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 26 27 28 3

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