Scott v. McDonald

Filing 22

ORDER signed by Magistrate Judge Gregory G. Hollows on 4/12/2012 ORDERING respondent to file a response to petitioner's 20 , 21 motion to amend the petition within 28 days, following which petitioner is granted 14 days to file any reply, after which the motion will be deemed submitted. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DEANDRE CERRONE SCOTT,

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Petitioner,

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No. CIV S-10-2492 WBS GGH P

vs.
MIKE McDONALD,

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Respondent.

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

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corpus pursuant to 28 U.S.C. § 2254. After respondent had filed an answer in this matter,

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petitioner, rather than submit a reply/traverse, filed a motion for a stay pending exhaustion of

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additional claims, a motion which was denied by Order, filed on June 23, 2011 (adopting

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findings and recommendations, finding that petitioner, far from showing “good cause” for having

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failed to raise the claims before filing his federal habeas petition provided no reason at all for the

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delay). Findings and Recommendations, filed on March 30, 2011, at docket # 14, pp. 2-3

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(relying on Rhines v. Webber, 544 U.S. 269, 277-38, 125 S.Ct. 1528, 1535 (2005)). Moreover,

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the court therein noted that the additional claims were likely to be found to be procedurally

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barred for having been raised untimely and/or for having failed to raise the issues earlier on direct

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appeal. Id. at 3-4 [citations omitted]. After the motion to stay was denied, petitioner was granted

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time to file a reply/traverse, which he did on July 28, 2011, after which this matter was deemed

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submitted.

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In a motion for leave to amend, not filed until March 27, 2012 (along with a

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proposed amended petition), petitioner now seeks to proceed on a first amended petition

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incorporating all of his claims and provides some evidence that his additional claims have been

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exhausted in the form of a postcard denial of his petition for writ of habeas corpus in the

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California Supreme Court by a decision, dated as filed on December 21, 2011. See docket # 21,

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p. 151. The court will require a response from respondent before ruling on the motion.

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Accordingly, IT IS HEREBY ORDERED that respondent file a response to

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petitioner’s March 27, 2012 (see docket # 20 and # 21) motion for leave to amend the petition

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within twenty-eight days, following which petitioner is granted fourteen days to file any reply,

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after which the motion will be deemed submitted.

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DATED: April 12, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH:009
scot2492.ord3

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