Bassett v. People of the State of California et al

Filing 42

ORDER signed by Magistrate Judge Allison Claire on 9/27/2013 ORDERING that petitioner's 41 motion to proceed on all three grounds of the original petition (characterized as a motion to amend) is GRANTED to the extent that petitioner maintains all three claims are now exhausted; respodent must file a motion to dismiss or an amended answer within 45 days; petitioner's opposition/reply due within 45 days thereafter; and requests for extensions of time will not be favored absent exceptional circumstances. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD DEWAYNE BASSETT,

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Petitioner,

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No. 2:11-cv-1592 TLN AC P

v.

ORDER

MIKE McDONALD, Warden, et al.,

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Respondents.

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Petitioner is a California state prisoner proceeding pro se pursuant to 28 U.S.C. § 2254.

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Before the court is a “motion to amend” filed on September 9. 2013. ECF No. 41. As the

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following procedural history illustrates, what petitioner actually seeks is to proceed on his initial

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petition.
This case was initiated by habeas petition filed on June 13, 2011. ECF No. 1. Petitioner

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challenges his conviction following a no contest plea to second degree robbery, forcible rape, and

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kidnapping. Petitioner admitted use of a firearm, and was sentenced in 2009 to a term of forty

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years and four months. Petition, p. 1; Answer, p. 8. Petitioner listed the grounds of his petition

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as (1) preliminary hearing issues; (2) plea bargain issue; and (3) ineffective assistance of counsel.

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Petition, pp. 6-14. An answer was filed on July 28, 2011.

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Agreeing with respondent that not all his claims were exhausted, petitioner moved for a

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stay. On November 14, 2011, the case was stayed pursuant to King v. Ryan, 564 F.3d 1133 (9th

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Cir. 2009), pending exhaustion of the unexhausted claims. ECF No. 27. By motion filed on

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April 27, 2012, petitioner indicated that he was unable to exhaust his claims but sought leave to

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file an amended petition setting forth a claim that he believed to be exhausted: ground three, a

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claim of ineffective assistance of counsel. ECF No. 28.

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By order filed on May 17, 2013, the stay was lifted; petitioner’s motion to amend his

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petition was granted; and petitioner was directed to file within thirty days either an amended

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petition containing exhausted claims only or a statement of exhausted claims in the original

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petition on which he elected to proceed. ECF No. 39.
On May 30, 2013, petitioner filed a document indicating that he sought to proceed on

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grounds two and three of his original petition. ECF No. 40. Petitioner also stated that he might

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seek leave to amend at some point in the future. Thereafter, on September 9, 2013, petitioner

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filed a motion to amend, seeking to proceed on each of the grounds of his original petition.

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Plaintiff asserts that his claims have now been exhausted and asks that they be deemed timely due

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to “extraordinary circumstances” preventing him from filing his exhaustion petition in the state

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Supreme Court. ECF No. 41.

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As noted, respondent had filed an answer to all three grounds of the original petition on

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June 28, 2011. ECF No. 17. The court will grant petitioner’s request to proceed on all three

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grounds of the original petition; however, respondent will have an opportunity to respond to the

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original petition in its present posture by way of a dispositive motion or an amended answer.

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Accordingly, IT IS ORDERED that:

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1. Petitioner’s motion for leave to proceed on all three grounds of the original petition

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(ECF No. 41) (characterized as a motion to amend) is granted to the extent that petitioner

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maintains all three claims are now exhausted;

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2. Respondent must file any motion to dismiss or an amended answer within 45 days of
the date of this order;
3. Thereafter, petitioner must file, within 45 days, an opposition or traverse/reply, as
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appropriate; if respondent files a motion, following the filing of an opposition by petitioner,

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respondent will have twenty-one days to file a reply;

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4. Requests for extensions of time will not be favored absent exceptional circumstances.
DATED: September 27, 2013

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AC:009
bass1592.ord2

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