Kishor v. Carey, et al

Filing 30

ORDER signed by Judge Lawrence K. Karlton on 10/30/06 ORDERING that the 9/16/05 ORDER and Judgment 25, 26 are VACATED. The Magistrate Judge's 3/25/05 Findings and Recommendations 22 are ADOPTED. Respondents' Motion to Dismiss 14 is GRANTED. The Amended petition 8, filed on 10/10/03, and as further amended on 4/30/04 17 is DISMISSED. The Clerk is directed to separate and file the amended Petition attached to Petitioner's 7/26/06, submission document 27; Respondents ar e directed to file an answer to petitioner's amended Petition within 30 days from the date of service of this order. Petitioner's traverse or reply shall be filed and served within 30 days of service of respondents' answer.(Mena-Sanchez, L)

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(HC) Kishor v. Carey, et al Doc. 30 Case 2:03-cv-01219-LKK-CMK Document 30 Filed 10/30/2006 Page 1 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 Respondents. 14 / 15 16 17 18 19 20 21 22 23 24 The Magistrate Judge recommended that: (1) petitioner be granted leave to file an amended 25 petition raising only exhausted claims; (2) petitioner should file a state petition on the entrapment 26 1 Dockets.Justia.com IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA CHANDRA KISHOR, Petitioner, vs. ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, et al., No. CIV S-03-1219-LKK-CMK-P ORDER Petitioner, a state prisoner proceeding pro se, brings a petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. On March 25, 2005, the Magistrate Judge issued findings and recommendations that respondents' motion to dismiss be granted and that the petition be dismissed. Specifically, the Magistrate Judge concluded: After reviewing the record in this action, the court finds that petitioner has failed to exhaust state court remedies as to his claim of entrapment. Accordingly, the petition is a mixed petition containing both exhausted and unexhausted claims and must be dismissed. Case 2:03-cv-01219-LKK-CMK Document 30 Filed 10/30/2006 Page 2 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 claim within 30 days after filing an amended federal petition; and (3) that this action be stayed and proceedings held in abeyance pending resolution of the new state petition. The Magistrate Judge also recommended that, once state court proceedings were completed, petitioner should file an amended petition "to present a fully exhausted petition to the District Court." The findings and recommendations cautioned that, if petitioner did not comply, his case could be dismissed. On April 8, 2005 before the findings and recommendations had been adopted petitioner filed a document entitled "Delete & Stay Unexhausted Claim & Amended Petition." In this document, petitioner expressed his agreement with the March 25, 2005, findings and recommendations. On June 7, 2005 also before the findings and recommendations had been adopted respondents filed a statement of non-opposition to petitioner deleting the unexhausted claim and holding proceedings on the remaining exhausted claims in abeyance. On September 16, 2005, the court issued an order adopting the March 25, 2005, findings and recommendations. The order dismissed the petition without prejudice. Judgment was entered accordingly on that same day. Since judgment was entered, petitioner has presented his entrapment claim to the state courts. Specifically, on June 26, 2006, petitioner filed a document attaching: (1) an order from the Sacramento County Superior Court issued on June 14, 2005, denying petitioner's entrapment claim both on state procedural grounds and on the merits; (2) an order from the California Court of Appeal issued on August 11, 2005, denying the entrapment claim without comment or citation; and (3) an order from the California Supreme Court issued on June 14, 2006, denying the entrapment claim with citations to In re Clark, 5 Cal.4th 750 (1993), and In re Robbins, 18 Cal.4th 770, 780 (1998). Attached to petitioner's June 26, 2006, filing is an amended federal petition as to all claims, including the now-exhausted entrapment claim. In light of the foregoing procedural history, it appears that the September 16, 2005, judgment was entered in error. Specifically, while the court adopted the Magistrate 2 Case 2:03-cv-01219-LKK-CMK Document 30 Filed 10/30/2006 Page 3 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Judge's findings and recommendations in full, petitioner was not specifically granted leave to file an amended petition and this action was not stayed. Rather, the court dismissed the petition without prejudice. Because the court originally envisioned a stay-and-abeyance procedure for this case which would preserve petitioner's original filing date, and because petitioner has now exhausted all his claims and presented this court with an amended petition, the court will vacate the September 16, 2005, order and judgment pursuant to Federal Rule of Civil Procedure 60(a). This action will now proceed on the amended petition attached to petitioner's July 26, 2006, filing, which the Clerk of the Court will be directed to file separately. Accordingly, IT IS HEREBY ORDERED that: 1. 2. are adopted; 3. 4. Respondents' motion to dismiss (Doc. 14) is granted; The amended petition (Doc. 8), filed on October 10, 2003, and as further The September 16, 2005, order and judgment are vacated: The Magistrate Judge's March 25, 2005, findings and recommendations amended on April 30, 2004 (Doc. 17) is dismissed; 5. The Clerk of the Court is directed to separate and file the amended petition attached to petitioner's July 26, 2006, submission (Doc. 27); 6. Respondents are directed to file an answer to petitioner's amended petition within 30 days from the date of service of this order; and 7. Petitioner's traverse or reply shall be filed and served within 30 days of service of respondents' answer. DATED: October 30, 2006. 3

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