Blyman v. Warden

Filing 35

ORDER DIRECTING Clarification of Petitioner's Status Report and Request to Amend the Petition, signed by Magistrate Judge Sheila K. Oberto on 05/16/2016. (Status Report: 30-Day Deadline) ( This order mailed to Wasco and R.J. Donovan as per this order) (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STEPHEN DANIEL BLYMAN,

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Petitioner,
v.

No. 1:14-cv-00836-DAD-SKO HC
ORDER DIRECTING CLARIFICATION
OF PETITIONER’S STATUS REPORT
AND REQUEST TO AMEND THE
PETITION

FELIX VASQUEZ, Warden, Wasco State
Prison,
Respondent.

(Doc. 33)

Petitioner Stephen Daniel Blyman is a state prisoner proceeding with a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. On February 12, 2015, this Court granted
Petitioner’s motion for stay and abeyance, directing Petitioner to file a status report within sixty

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days and to file status reports every ninety days thereafter. Although more than ninety days had
elapsed since his last submission of a status report on December 3, 2015, Petitioner did not file a

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status report until May 16, 2016. That report set forth substantially the same information

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included in the December 2015 status report, acknowledged receipt of the Court’s order

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reassigning this case to District Judge Dale A. Drozd, and requested leave to amend the petition.

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The motion for leave to amend the petition appears to contemplate a need to incorporate

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into the original petition the reassignment of the above-captioned case to Judge Drozd. To the
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extent that Petitioner seeks to amend the petition solely to reflect the reassignment, no
amendment is necessary.
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The December 2015 status report indicated that Petitioner had submitted a habeas petition
to the California Supreme Court. The May 2016 status report does not indicate whether the
California Supreme Court has addressed the state petition.

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When the California Supreme Court has either (1) issued a determination of the petition
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on its merits or (2) declined to review the petition, Petitioner will have exhausted state remedies

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for the additional claims for which the Court ordered the stay of proceedings in February 2015.

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The stay order (Doc. 21) provides that when Petitioner has exhausted state remedies available for

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the additional claims, Petitioner must (1) advise the Court of the California Supreme Court’s

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order and (2) file an amended petition. (No motion to amend is required.) The amended petition
must set forth all exhausted claims, including both the new claims that were the subject of the
stay and the claims that were exhausted prior to Petitioner’s filing of the original petition in June

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2014. In other words, the amended petition must be complete in itself, without requiring
Respondent or the Court to refer to the original petition or any other document.
Finally, the Court takes judicial notice of the directory of inmates of the California
Department of Corrections and Rehabilitation, which indicates that Petitioner is now housed at
the R.J. Donovan Correctional Facility, San Diego, California. Local Rule 183(b) requires all
persons proceeding in propria persona (pro se) to advise the Clerk of Court in writing of any

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change of address. If Petitioner is no longer incarcerated at Wasco State Prison, he must file a

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separate document with the Clerk of Court disclosing in full his current address. As provided in

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Local R. 183(b), a petitioner’s failure to notify the Clerk of Court of a change of address may

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result in dismissal of his or her petition for failure to prosecute.

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Accordingly, the Court hereby ORDERS that:
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Within thirty (30) days from the date of service of this order, Petitioner

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shall file a written report with the Court disclosing the current status of the habeas petition
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submitted to the California Supreme Court in or about December 2015. If the California

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Supreme Court has issued its decision on the petition or has declined to consider the

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petition, Petitioner shall supply a copy of the document associated with the California

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Supreme Court’s order and shall submit the first amended petition for writ of habeas

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corpus, setting forth all exhausted claims that Petitioner now seeks to pursue in the federal

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petition. Petitioner is reminded that the amended petition must be complete in itself and

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must not require reference to the original federal petition or any other document.

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2.

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If Petitioner’s address has changed from Wasco State Prison to another

location, Petitioner shall file with the Clerk of Court a separate notice of change of

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address in conformity with Local R. 183(b).

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3.

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In an abundance of caution, the Clerk of Court is directed to mail a copy of

this order to Petitioner both at (a) his last known address at Wasco State Prison, and (b)

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the Richard J. Donovan Correctional Facility, 480 Alta Road, San Diego, California

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92179.

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4.

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Petitioner’s failure to comply with this order will result in a

recommendation that the petition be dismissed.

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IT IS SO ORDERED.
Dated:

May 16, 2016

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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