Stolp v. Holland

Filing 14

INFORMATIONAL ORDER, signed by Magistrate Judge Jennifer L. Thurston on 6/29/16. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GERALD H. STOLP,

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Petitioner,

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v.

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KIM HOLLAND,

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Respondent.

) Case No.: 1:16-cv-00560-JLT
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) INFORMATIONAL ORDER
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In this action, Petitioner raises the following claims: (1) violation of Petitioner’s right to a

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speedy trial; (2) ineffective assistance of appellate counsel; (3) violation of statute of limitations; and

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(4) violation of Interstate Agreement on Detainers Act. (Doc. 1) Petitioner readily acknowledges that

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only ground one is exhausted and filed a motion to stay the proceedings in this case while he exhausts

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grounds three and four in state court. (Doc. 3) In his petition, Petitioner indicated that he believed,

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erroneously, that ground two need not be exhausted because it arose during the course of his direct

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appeal. On April 25, 2016, the Court issued an order granting a stay, requiring Petitioner to file

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regular status reports, and indicating to Petitioner that an issue is not exhausted merely because it

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arose during his direct appeal. (Doc. 10)

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Since that time, Petitioner has filed two status reports, both indicating that he has been unable

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to pursue exhaustion at the intermediate appellate level because of being placed in administrative

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segregation, because of being limited in his access to the prison law library, and again requesting legal
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advice regarding whether ground two is exhausted.

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DISCUSSION

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As mentioned in the order granting a stay, it is Petitioner’s obligation to diligently pursue

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exhaustion in state court. Absent diligent efforts, as explained to the Court in regular status reports,

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the Court will routinely lift a stay and allow the proceedings to continue, regardless of whether

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Petitioner has successfully exhausted additional issues.
Here, Petitioner has repeatedly asked this Court to advise him whether his ground two is

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exhausted, initially because the issue arose during the direct appeal and later because it was

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“indirectly” raised in his state petition.
Petitioner is advised that the Court is the deciding tribunal in these proceedings. As such, it

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does not provide legal advice to either side in a case. Accordingly, the Court cannot and will not

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provide Petitioner with an advisory opinion on whether ground two has been exhausted. As it would

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with any petitioner, the Court admonishes Petitioner to attempt to exhaust issues he believes may be

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unexhausted, and to proceed on those he believes are already fully exhausted.

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Also by way of admonishment, the Court notes that many petitioners find themselves in

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administrative segregation or other restrictive custodial environments, e.g., transfers to different

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facilities, prison lockdowns, etc., where an inmate’s legal papers may be temporarily misplaced or

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otherwise unavailable. It is a normal, albeit unfortunate, part of prison life that access to the prison

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law library may be limited or even eliminated for periods of time. Those are not “extraordinary

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circumstances” that excuse diligence in pursuing exhaustion, and they do not relieve Petitioner from

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his obligation of exerting his best efforts to exhaust his state remedies pursuant to the Court’s April 25,

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2016 order granting the stay.

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Petitioner is reminded that he has the ongoing obligation to submit regular status reports every

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sixty days regardless of whether there is any progress in his case. Otherwise, the Court has no way of

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tracking the progress, if any, of petitioner’s attempts to exhaust issues in state court. His failure to

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comply will result in the Court lifting the stay and proceeding accordingly.

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IT IS SO ORDERED.
Dated:

June 29, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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