Vang v. State of California et al

Filing 15

ORDER signed by Magistrate Judge Dale A. Drozd on 11/9/12 ORDERING that any renewed motion for stay and abeyance shall be due 21 days from the date of this order. Should petitioner elect not to file a renewed motion for stay and abeyance by that date, the court will presume that petitioner no longer seeks a stay and the original habeas petition pending before this court will then be screened.(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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NOU VANG,

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Petitioner,

No. 2: 12-cv-0159 DAD P

vs.
STATE OF CALIFORNIA, et al.,
Respondents.

ORDER
/

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

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habeas corpus pursuant to 28 U.S.C. § 2254. On July 10, 2012, the court noted that petitioner’s

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sole claim for federal habeas relief is based on his contention that he did not receive a speedy

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trial. (See Dkt. No. 12 at p. 1-2.) Petitioner also filed a brief motion for stay and abeyance of

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this action that was denied by this court without prejudice. (See id. at p. 5.) In that order the

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court noted that it was not clear whether petitioner’s sole claim for habeas relief was exhausted

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or unexhausted. (See id. at p. 3.) Furthermore, it was not clear whether petitioner wished to

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pursue additional claims that he that he had not included in his habeas petition pending before

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this court. (See id. at p. 4.) Therefore, the court granted petitioner thirty days to file a renewed

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motion for stay and abeyance so as to clarify whether he wished to proceed with a stay and

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abeyance under the procedure outlined in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), or under
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the procedure outlined in Rhines v. Weber, 544 U.S. 269 (2005). The court also noted that

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petitioner would need to file an amended petition containing any exhausted and unexhausted

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claims if he requested a Rhines stay. Alternatively, the court noted that “if petitioner has not

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exhausted any of his claims in state court as required, he may move to voluntarily dismiss this

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action without prejudice.” (Dkt. No. 12 at p. 5.)

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Petitioner received an extension of time to comply with the court’s July 10, 2012

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order until September 25, 2012. (See Dkt. No. 14.) To date, petitioner has not filed a renewed

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motion for stay and abeyance nor has he filed a notice of voluntary dismissal.

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Accordingly, IT IS HEREBY ORDERED that any renewed motion for stay and

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abeyance shall be due twenty-one (21) days from the date of this order. Should petitioner elect

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not to file a renewed motion for stay and abeyance by that date, the court will presume that

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petitioner no longer seeks a stay and the original habeas petition pending before this court will

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then be screened.

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DATED: November 9, 2012.

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DAD:dpw
vang0159.osc.stay

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