Jimenez v. Sutton

Filing 7

SECOND ORDER to SHOW CAUSE Why Motion to Stay Should Be Granted signed by Magistrate Judge Michael J. Seng on 10/12/2017. Show Cause Response or Notice to Withdraw Motion due within thirty (30) days. (Jessen, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:17-cv-00333 MJS (HC)
OSCAR JIMENEZ,

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SECOND ORDER TO SHOW CAUSE WHY
Petitioner, MOTION TO STAY SHOULD BE GRANTED
(ECF No. 2)

v.

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JOHN SUTTON,
Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges an August 6, 2013 conviction

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from the Kern County Superior Court for two counts of second degree murder, two

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counts of gross vehicular manslaughter while intoxicated, and driving with a suspended

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license. (Pet., ECF No. 1.) In his petition, Petitioner presents five claims for relief

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including claims for insufficient evidence, instructional error, violation of the Fourth

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Amendment, improper admission of evidence, and sentencing error. (See Pet.)

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Petitioner filed the instant petition on March 8, 2017. (Pet.) On the same date,

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Petitioner filed a motion to stay the petition. (Mot. to Stay, ECF No. 2.) In the motion,

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Petitioner states that he wants to raise additional federal grounds that had not been

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raised or exhausted in state court. (Id.) However, Petitioner did not provide further

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explanation as to which claims were unexhausted or as to his efforts seeking exhaustion
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of those claims in state court. (Id.)

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On April 14, 2017, the Court ordered Petitioner to show cause why his motion to

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stay should be granted. (ECF No. 5.) Specifically, the Court ordered Petitioner to state

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which of his claims were unexhausted and what efforts he has made to exhaust those

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claims. (Id.) Petitioner was given thirty days to respond to the Order. Petitioner filed a

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timely response to the Order to Show Cause on May 15, 2017. (ECF No. 6.) While

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Petitioner outlined his efforts to exhaust claims in state court, as well as provided

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detailed background information on the reasons why these claims were not exhausted,

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Petitioner’s response to the Order to Show Cause was incomplete.

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In particular, Petitioner has not presented sufficient information regarding whether

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he has presented a mixed petition. It is still not clear whether the claims presented in the

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Petition are fully exhausted or whether Petitioner is still exhausting some or all of those

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claims. To fully respond to the Court’s Order to Show Cause, Petitioner shall provide the

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Court with a comprehensive list of the specific claims that he has already exhausted, as

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well as those that he is still attempting to exhaust in state court.

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Accordingly, Petitioner is hereby ORDERED a second time to show cause why

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the motion to stay (ECF No. 2) should be granted. A response to this Order shall include

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a list of the claims Petitioner has a lready exhausted, as well as a list of the claims that

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Petitioner still needs to exhaust. A response to this Order, or a notice to withdraw the

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motion to stay, is due within thirty (30) days of the issuance of this Order. Petitioner is

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forewarned that failure to follow this Order may result in sanctions, including the

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dismissal of the petition without prejudice. Local Rule 110.

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IT IS SO ORDERED.
Dated:

October 12, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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