White v. Gipson

Filing 32

ORDER DENYING 29 Motion to Stay; ORDER Directing Respondent to File a Response to Petitioner's Second Amended Complaint Within Thirty (30) Days signed by Magistrate Judge Michael J. Seng on 8/6/2016. (Jessen, A)

1
2
3
4
5
6
7
IN THE UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9
10
11

1:14-cv-01214 LJO MJS HC
JAMES E. WHITE,

12
13
14
15

v.

ORDER DENYING MOTION TO STAY;
Plaintiff, ORDER DIRECTING RESPONDENT TO
FILE A RESPONSE TO PETITIONER’S
SECOND AMENDED PETITION
THIRTY (30) DAY DEADLINE

CONNIE GIPSON, Warden,

Defendant. (Docs. 29-30)

16
17
18
19

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.

20

Petitioner filed the instant petition for writ of habeas corpus on August 4, 2014.

21

(Pet., ECF No. 1.) On August 26, 2014, the Court granted Petitioner’s first motion to stay

22

the petition under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002). (Order, ECF No. 7.)

23

Under the Kelly procedure, the Court allowed Petitioner to file an amended petition that

24

did not include unexhausted claims. The Court then imposed a stay to allow Petitioner to

25

exhaust the claims in state court.

26

Petitioner did not contact the Court upon exhausting his claims in state Court, and

27

on January 19, 2016, the Court vacated the stay. (ECF No. 16.) On February 4, 2016,

28

the Court ordered Respondent to file a response to the petition, which she did on March
1

1

30, 2016. (Answer, ECF No. 21.)

2

On April 28, 2016, and again on May 10, 2016, Petitioner filed motions to amend

3

the petition to include the claims that he attempted to exhaust in state court. Peti tioner

4

failed to file a motion to lift the stay and present the Court with an amended petition

5

containing the newly exhausted claims. On May 17, 2016, the Court granted Petitioner’s

6

motion to file an amended Petition. (ECF No. 28.)

7

On May 31, 2016, Petitioner filed a second motion to stay the petition, along with

8

a second amended petition. (ECF Nos. 29-30.) Petitioner provides no specific

9

information why a second stay is warranted in this matter, and what claims, if any, are

10

still pending before the state courts. Having previously stayed the case for a year and a

11

half to allow Petitioner to exhaust his claims in state court, the Court finds that Petitioner

12

has not presented good cause for granting a second stay. The motion to stay the case is

13

DENIED.

14

Having allowed Petitioner to file an amended petition, the operative petition in the

15

present matter is the second amended petition filed on May 31, 2016. (ECF No. 30.)

16

Respondent has responded to Petitioner’s prior petition with an answer filed with the

17

Court on March 30, 2016. However, Respondent is hereby provided an opportunity to

18

review the second amended petition, and provide a revised answer, or notify the Court

19

that no changes are required to the March 30, 2016 answer. Respondent is ordered to

20

file a revised answer or notice to the Court within thirty (30) days of service of this order.

21
22
23
24

IT IS SO ORDERED.
Dated:

August 6, 2016

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

25
26
27
28
2