Nagy v. Davey et al

Filing 29

ORDER signed by Magistrate Judge Dale A. Drozd on 08/18/14 granting 26 Motion to Stay. Within 30 days of the date of service of this order, petitioner may file a traverse. If petitioner chooses not to file a traverse he shall so notify the court of that decision in writing within 30 days of this order and this matter will be deemed submitted for decision. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL NAGY,

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No. 2:11-cv-2948 WBS-DAD P
Petitioner,

v.

ORDER

D. DAVEY, et al.,
Respondents.

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Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent’s motion to lift the

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previously entered stay of this action habeas action.

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By way of background, on November 7, 2011, petitioner commenced this action by filing

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a petition for writ of habeas corpus challenging his 2009 judgment of conviction on multiple state

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criminal charges. On February 22, 2012, respondent filed an answer to the petition. On April 6,

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2012, upon review of the petition, then-assigned Magistrate Judge Moulds determined that the

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petition was a “mixed” petition containing both exhausted and unexhausted claims and granted

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petitioner time to file a motion for a stay and abeyance.

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On November 9, 2012, Magistrate Judge Moulds construed petitioner’s motion for a stay

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and abeyance as including a request to delete his unexhausted claims and granted that request.

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Magistrate Judge Moulds also issued findings and recommendations, recommending that this
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action be stayed pursuant to procedure outlined in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003),

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pending petitioner’s exhaustion of his state judicial remedies. On December 5, 2012, the assigned

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District Judge adopted those findings and recommendations in full and stayed this action.

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More than a year later, on April 3, 2014, counsel for respondent filed the pending motion

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to lift the stay of this action and represented that petitioner had not filed any state habeas petitions

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since the court had granted his motion for a stay. Respondent requests that the court proceed to

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disposition on the petition as it stands as amended pursuant to the court’s November 9, 2012

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order. On June 6, 2014, the undersigned issued an order requiring petitioner to show cause in

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writing why the current stay should not be lifted with him being required to proceed in this habeas

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action only on his already exhausted claims. The court invited petitioner to explain any efforts he

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had undertaken to exhaust his unexhausted claims but warned him that any failure to respond to

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the order to show cause would result in an order granting respondent’s motion to lift the

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previously entered stay and requiring petitioner to proceed only on his exhausted claims.

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To date, petitioner has not responded to the court’s order to show cause. Under these

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circumstances, the court will grant respondent’s motion to lift the stay of this action. In addition,

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however, the court will grant petitioner thirty days to file a traverse. If petitioner chooses not to

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file a traverse he shall so notify the court of that decision in writing within thirty days of this

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order and this matter will then be deemed submitted for decision.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Respondent’s motion to lift the stay of this action (Doc. No. 26) is granted;

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2. Within thirty days of the date of service of this order, petitioner may file a traverse. If

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petitioner chooses not to file a traverse he shall so notify the court of that decision in writing

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within thirty days of this order and, this matter will be deemed submitted for decision.

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Dated: August 18, 2014

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DAD:9
nagy2948.lft

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