Brooks v. McDonald

Filing 26

ORDER signed by Magistrate Judge Dale A. Drozd on 10/1/12 DENYING 23 Motion to vacate the stay; Petitioner shall present any unexhausted claims to the California Supreme Court in a further state habeas corpus petition to be filed within 30 days if he has not done so already.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PHARAOH E. BROOKS,

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Petitioner,

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vs.

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No. 2: 11-cv-1637 MCE DAD P

M. McDONALD,

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Respondent.

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

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corpus pursuant to 28 U.S.C. § 2254. On May 3, 2012, petitioner’s motion for stay and abeyance

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was granted.1 (See Dkt. No. 19.) Petitioner was ordered to present any unexhausted claims to

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the California Supreme Court within thirty days. Furthermore, the court required petitioner to

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file a status report in this case on the first court day of every month. Petitioner has complied with

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filing the status reports. (See Dkt. Nos. 20, 21, 22 & 25.)

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On August 9, 2012, respondent filed a motion to vacate the stay. Therein,

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respondent claims that petitioner does not have a pending state habeas petition before the

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California Supreme Court and is therefore in violation of the May 3, 2012 order which ordered

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Respondent did not oppose the request for stay and abeyance.
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him to file his state habeas petition within thirty days. Respondent attaches printouts from the

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California Supreme Court’s online docket system which indicates that petitioner does not

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currently have a pending state habeas petition before that court.

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Petitioner responds to respondent’s motion by attaching a list of his special

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purpose mailings. (See Dkt. No. 25.) This document indicates that petitioner mailed something

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to the California Supreme Court on May 21, 2012. However, a review of the California Supreme

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Court docket entries provided by respondent indicates that there is no habeas petition from

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petitioner pending before that court.

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Rather than grant respondent’s motion to vacate the stay, it appears as if petitioner

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has at least attempted to comply with this court’s May 3, 2012 order. Nevertheless, it also

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appears that no state habeas petition is currently pending in the California Supreme Court. At

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this stage, petitioner shall be given an additional thirty days to present any unexhausted claims to

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the California Supreme Court in a further state habeas corpus petition.

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Accordingly, IT IS HEREBY ORDERED THAT:

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1. Respondent’s motion to vacate the stay (Dkt. No. 23.) is DENIED; and

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2. Petitioner shall present any unexhausted claims to the California Supreme

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Court in a further state habeas corpus petition to be filed within thirty days if he has not done so

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already. Failure to do so may result in the stay of this federal habeas action being lifted.

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DATED: October 1, 2012.

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DAD:dpw
broo1637.motvacstay

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