Price v. California Department of Corrections & Rebiliatation, et al

Filing 38

ORDER signed by Magistrate Judge Edmund F. Brennan on 7/17/2012 ORDERING that respondents shall file and serve a supplemental answer or a statement that respondents do not wish to file a supplemental answer within 30 days; respondents shall submit a copy of petitioner's petition filed in the California Supreme Court and any other additional relevent documents; petitioner's reply, if any, shall be filed and served within 30 days of service ot the revised answer or statement; petitioner's 34 motion for stay and abeyance is DENIED as moot. (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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GABRIEL PRICE,
Petitioner,

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No. 2:11-cv-1315 KJM EFB P

vs.
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et. al.,
Respondents.

ORDER
/

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to

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28 U.S.C. § 2254. Pending before the court is petitioner’s February 17, 2012 motion for a stay

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and abeyance, in which petitioner requests that the court stay the case while he exhausts his

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claims in state court. See Dckt. No. 34.

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On March 1, 2012, respondents filed an opposition to petitioner’s motion for a stay and

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abeyance. See Dckt. No. 36. Respondents argue that the motion should be denied because the

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petition contains all unexhausted claims, petitioner unreasonably delayed presenting his claims

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to the California Supreme Court, and petitioner has failed to show that his claims have merit.

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On April 9, 2012, petitioner filed a document titled “Motion to Take Judicial Notice
Pursuant to FRCP.” Dckt. No. 37. In the document, petitioner argues that his motion to stay the

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case is now moot because the California Supreme Court has denied his habeas petition and all of

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his claims are now exhausted. Dckt. No. 37 at 1-2. The filing includes a copy of the California

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Supreme Court’s denial of his habeas petition. Id. at 8. As it appears that the petition no longer

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contains unexhausted claims, petitioner’s motion for a stay and abeyance will be denied as moot.

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In light of respondents filing an answer prior to petitioner exhausting all of his claims,

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respondents will be given an opportunity to file a supplemental answer.

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Accordingly, it is ORDERED that:

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1. Respondents shall file and serve a supplemental answer or a statement that

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respondents do not wish to file a supplemental answer within 30 days of the date of this order.

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2. Respondents shall submit a copy of petitioner’s petition for writ of habeas corpus filed

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in the California Supreme Court and any other additional documents relevant to the

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determination of the issues presented in the application. See Rules 4, 5, Rules Governing § 2254

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Cases.

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

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revised answer or statement that respondents do not wish to file a revised answer.

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Dated: July 17, 2012.

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