Lewis v. Miller

Filing 18

ORDER signed by Magistrate Judge Edmund F. Brennan on 7/19/11 ORDERING 3 Motion to Stay and 11 Motion to Dismiss are denied as moot; The August 10, 2011 hearing on 11 Motion to dismiss is vacated; Respondent shall file and serve an answer in response to petitioner's application w/in 60 days from the date of this order. Petitioner's reply, if any, shall be filed and served w/in 30 days of service of an answer. (Matson, R)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

CANDICE LEWIS,
Petitioner,

11
vs.

12
13

No. CIV S-11-0423 LKK EFB P

WALTER MILLER,
Respondent.

14

ORDER
/

15

Petitioner is a state prisoner with counsel seeking a writ of habeas corpus. See 28 U.S.C.

16
17

§ 2254. Currently pending are petitioner’s motion to stay and hold this action in abeyance until

18

all of her claims are exhausted, and respondent’s motion to dismiss because the petition contains

19

unexhausted claims. Dckt. Nos. 3, 11. Petitioner raised the unexhausted claims in a petition for

20

review filed in the California Supreme Court in Case No. S193203. See Dckt. No. 14, Ex C. A

21

review of the California Supreme Court’s docket shows that it issued a decision in Case No.

22

S193203 on July 13, 2011.1 Because it appears the petition no longer contains unexhausted

23

claims, petitioner’s motion to stay, and respondent’s motion to dismiss, will be denied as moot.

24

////

25
1

26

A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman,
803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
1

1

Accordingly, IT IS HEREBY ORDERED that:

2

1. Petitioner’s February 14, 2011 motion to stay is denied as moot.

3

2. The August 10, 2011 hearing on respondent’s motion to dismiss is vacated.

4

3. Respondent’s April 19, 2011 motion to dismiss is denied as moot.

5

4. Respondent shall file and serve an answer in response to petitioner’s application

6

within 60 days from the date of this order. See Rule 4, Fed. R. Governing § 2254 Cases. Any

7

response shall be accompanied by any and all transcripts or other documents relevant to the

8

determination of the issues presented in the application. See Rules 4, 5, Fed. R. Governing

9

§ 2254 Cases.

10

5. Petitioner’s reply, if any, shall be filed and served within 30 days of service of an

11

answer.

12

Dated: July 19, 2011.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
2