Boyd v. Knipp

Filing 23

ORDER signed by Magistrate Judge Gregory G. Hollows on 8/19/12 ORDERING that the Findings and Recommendations, 21 are hereby VACATED; Petitioners motion for a stay and abeyance, 3 is VACATED from the courts calendar as moot; Respondents motion to dismiss as barred by the statute of limitations, 13 is VACATED without prejudice as premature; Respondent is directed to file a response to petitioners habeas petition within sixty days from the date of this order. Clerk of the Court shall also serve upon respondents counsel the form Consent to Proceed Before a United States Magistrate Judge.(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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WILLIAM ALEXANDER BOYD,

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Petitioner,

No. 2: 12-cv-0372 JAM GGH P

vs.
W. KNIPP, Warden,

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Respondent.

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ORDER
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Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. By Findings and Recommendations, filed on July

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31, 2012, this court recommended petitioner’s motion for a stay be granted, pursuant to Rhines,1

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pending exhaustion of petitioner’s unexhausted claims which petitioner had indicated in his

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motion were then pending before the state Supreme Court. The court also recommended

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respondent’s motion to dismiss as barred by the statute of limitations be vacated without

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prejudice. However, shortly thereafter, on August 10, 2012, while the findings and

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recommendations were still pending, petitioner filed a notice of state court exhaustion of the

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previously unexhausted claims, including a copy of a May 16, 2012, state Supreme Court denial

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of the petition with citations to In re Robbins, 18 Cal.4th 770, 780 (1998), and In re Clark, 5

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Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (1995).
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Cal.4th 750, 767-769. It is unclear why petitioner could not have filed this notice earlier and

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sought to withdraw his motion for a stay.

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Nevertheless, in light of this updated information, the court will vacate its

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findings and recommendations and set the briefing schedule for this matter as petitioner indicates

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all of his claims in the original petition have been exhausted. Petitioner perceives no need for an

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amended petition and seeks only to proceed on the claims of his original petition. As respondent

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filed the motion to dismiss at a time when only an opposition to the stay motion was due and

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prior to the denial of petitioner’s state court petition containing the unexhausted claims, the court

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will now vacate by order both petitioner’s motion to stay as moot and petitioner’s motion to

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dismiss without prejudice as premature.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. The Findings and Recommendations, filed on July 31, 2012 (docket # 21), are

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hereby VACATED;
2. Petitioner’s motion for a stay and abeyance, filed on February 14, 2012 (docket
# 3), is VACATED from the court’s calendar as moot;
3. Respondent’s motion to dismiss as barred by the statute of limitations, filed on
March 30, 2012 (docket # 13), is VACATED without prejudice as premature;
4. Respondent is directed to file a response to petitioner’s habeas petition within

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sixty days from the date of this order. See Rule 4, 28 U.S.C. foll. § 2254. An answer shall be

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accompanied by all transcripts and other documents relevant to the issues presented in the

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petition. See Rule 5, 28 U.S.C. foll. § 2254;

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5. If the response to the habeas petition is an answer, petitioner’s reply, if any,
shall be filed and served within thirty days after service of the answer;
6. If the response to the habeas petition is a motion, petitioner’s opposition or

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statement of non-opposition to the motion shall be filed and served within thirty days after

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service of the motion, and respondent’s reply, if any, shall be filed and served within fourteen
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days thereafter; and

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7. In addition to serving a copy of this order, the Clerk of the Court shall also

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serve upon respondent’s counsel the form Consent to Proceed Before a United States Magistrate

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Judge.

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DATED: August 19, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:009

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boyd0372.ord2

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