Bucci v. Busby

Filing 25

ORDER signed by Magistrate Judge Kendall J. Newman on 02/20/14 granting 19 Motion to lift the stay. The hearing set regarding the motion for 02/27/14 before the undersigned is vacated. The motion by counsel to appear at the hearing telephonically 21 is denied as unnecessary. Pursuant to the stipulation of the parties, respondent is granted 90 days to file a motion to dismiss on procedural grounds; if respondent files such a motion, petitioner's opposition is due 30 days thereafter, r espondent's reply is due 15 days thereafter, and after reviewing the pleadings the court will set a hearing on the motion to dismiss if appropriate. Petitioner's motion to file the amended petition is deferred pending resolution of the motion to dismiss. (Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

NICOLA CHRISTOPHER BUCCI,

12
13
14

No. 2: 11-cv-3147 GEB KJN P

Petitioner,
v.

ORDER

TIMOTHY E. BUSBY, et al.,

15

Respondents.

16
17

Petitioner is a state prisoner, proceeding through counsel, with a petition for writ of

18

habeas corpus pursuant to 28 U.S.C. § 2254. On April 30, 2012, this action was administratively

19

stayed pending petitioner’s exhaustion of claims in state court. (ECF No. 18.)

20

On January 23, 2014, petitioner filed a motion to vacate the stay and a motion to file an

21

amended petition. (ECF No. 19.) Petitioner also filed a proposed amended petition. (Id.)

22

Petitioner noticed the motion to stay for hearing before the undersigned on February 27, 2014.

23
24

On February 13, 2014, the parties filed a stipulation to lift the stay. (ECF No. 23.) In the
stipulation, respondent states that he does not oppose the motion to lift the stay. (Id.)

25

Good cause appearing, IT IS HEREBY ORDERED that:

26

1.

Petitioner’s motion to lift the stay (ECF No. 19) is granted; the hearing set regarding

27

this motion for February 27, 2014, before the undersigned is vacated; the motion by

28

petitioner’s counsel to appear at this hearing telephonically (ECF No. 21) is denied as
1

1

unnecessary;

2

2. Pursuant to stipulation by the parties, respondent is granted ninety days to file a

3

motion to dismiss on procedural grounds; if respondent files such a motion,

4

petitioner’s opposition is due thirty days thereafter; respondent’s reply is due fifteen

5

days thereafter; and after reviewing the pleadings, the court will set a hearing for the

6

motion to dismiss, if appropriate; and

7

3. Petitioner’s motion to file the amended petition is deferred pending resolution of the

8
9

motion to dismiss.
Dated: February 20, 2014

10
11

buc3147.ord

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2