Kelly v. Madden

Filing 24

ORDER Regarding 22 Petitioner's Motion to Proceed signed by Magistrate Judge Jennifer L. Thurston on 5/9/2017. Respondent is directed to file either a supplement to his motion to dismiss, or a motion to withdraw his motion to dismiss within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN MICHAEL KELLY,

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Petitioner,

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v.

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ORDER REGARDING PETITIONER’S
MOTION TO PROCEED
(Doc. No. 22)
[THIRTY-DAY DEADLINE]

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No. 1:16-cv-01577-DAD-JLT (HC)

RAYMOND MADDEN,
Respondent.
On March 20, 2017, the Court issued Findings and Recommendation to grant

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Respondent’s motion to dismiss for failure to exhaust and to deny Petitioner’s motion for stay of

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proceedings. (Doc. Nos. 14, 17, 20). This Findings and Recommendation was served upon all

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parties and contained notice that any objections were to be filed within twenty-one days from the

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date of service of that order. On April 6, 2017, Petitioner filed objections to the Findings and

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Recommendations. (Doc. No. 21). After expiration of the time for filing a reply to objections,

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the Findings and Recommendation was submitted to the District Judge for review.

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On May 3, 2017, Petitioner filed the instant motion to proceed with the petition. He states

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the California Supreme Court recently issued an order denying his unexhausted claims on April

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19, 2017. He claims the petition is now fully exhausted. In light of this new development, the

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Court will direct Respondent as follows: 1) If it is Respondent’s position that the petition still
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contains unexhausted claims, he shall submit a supplement to his motion to dismiss; or 2) If

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Respondent concedes the petition is now exhausted, he shall move to withdraw the motion to

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dismiss.

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ORDER

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Accordingly, the Court orders as follows:

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1.

Within thirty days of the date of service of this Order, Respondent is DIRECTED

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to file either a supplement to his motion to dismiss, or a motion to withdraw his

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motion to dismiss;

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2.

In the event Respondent files a supplement to the motion to dismiss, Petitioner

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may file a supplement to his opposition with thirty days of the filing of

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Respondent’s supplement.

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IT IS SO ORDERED.
Dated:

May 9, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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