Meyers v. Warden of Centinela State Prison

Filing 22

ORDER signed by Magistrate Judge Kendall J. Newman on 3/19/13 DENYING without prejudice 13 Motion to Dismiss. Petitioner is granted 15 days from the date of this order in which to clarify whether the petition for writ of habeas corpus filed in this action on March 11, 2013, is a copy of a petition that he also filed in the California Supreme Court; and, if appropriate, petitioner shall file a motion to stay these proceedings. (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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AARON MEYERS,
Petitioner,

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No. 2:12-cv-0958 GEB JFM P

vs.
WARDEN OF CENTINELA STATE
PRISON,

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

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habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2009 conviction on

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charges of first degree murder and a finding that he personally and intentionally discharged a

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firearm in the commission of the crime. Petitioner raises four claims in his petition, filed on or

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about April 10, 2012.

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On June 6, 2012, respondent moved to dismiss the petition on the ground that

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petitioner failed to exhaust state court remedies with respect to claims two, three and four of the

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petition. Petitioner failed to timely file a response to the motion. For that reason, on July 31,

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2012, petitioner was ordered to file either an opposition to the motion or a statement of non-

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opposition within thirty days. On August 29, 2012, petitioner filed a motion for extension of

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time, which was granted by order filed September 10, 2012.
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By order filed January 3, 2013, the court found that petitioner had failed to

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exhaust state court remedies as to his second, third and fourth claims for relief and, therefore,

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that the original petition in this action is a mixed petition containing both exhausted and

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unexhausted claims which must be dismissed unless petitioner seeks and obtains a stay of these

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proceedings to exhaust state court remedies with respect to those claims. See Order filed January

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3, 2013, at 2-3. Accordingly, the court granted petitioner sixty days to file either a motion to stay

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these proceedings or an amended petition raising only his exhausted claim, and deferred ruling

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on respondent’s motion to dismiss.

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On March 11, 2013, petitioner filed a petition for writ of habeas corpus. The

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petition names the California Supreme Court as respondent, bears a different case number than

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the one assigned to this action, and contains petitioner’s three unexhausted claims for relief. The

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petition is not accompanied by a motion to stay these proceedings, and it is unclear whether it is a

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copy of an exhaustion petition filed by petitioner in the California Supreme Court or an amended

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petition that petitioner seeks to file in this action. If it is the latter, it must be dismissed since it

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contains only the claims which have been previously identified as unexhausted.

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Good cause appearing, petitioner will be granted one additional period of fifteen

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days in which to clarify whether the petition for writ of habeas corpus filed in this action on

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March 11, 2013, is a copy of a petition that he has also filed in the California Supreme Court and,

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if so, whether he seeks to stay this action pending disposition of that state court action. Petitioner

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is cautioned that failure to comply with this order will result in the dismissal of his original

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petition for writ of habeas corpus on the ground that it is a mixed petition containing

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unexhausted claims.

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As noted before, it is plain that the original petition before this court is a mixed

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petition that must be dismissed unless petitioner seeks and obtains a stay. For the reasons set

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forth in this order, petitioner will be given an additional period of fifteen days to clarify whether

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he is moving for a stay of this action pending exhaustion of state court remedies for the three
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claims contained in the petition filed herein on March 11, 2013. Because it is not yet clear

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whether the original petition should be dismissed order stayed, respondent’s unopposed motion

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to dismiss, which properly identified the three unexhausted claims, will be denied without

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prejudice to a subsequent order of this court dismissing those claims or the entire original

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petition following the end of the fifteen day period described in this order and, as appropriate,

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proceedings on a motion to stay if one is filed.

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

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1. Respondent’s June 6, 2012 motion to dismiss (ECF No. 13) is denied without

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prejudice; and

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2. Petitioner is granted fifteen days from the date of this order in which to clarify

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whether the petition for writ of habeas corpus filed in this action on March 11, 2013, is a copy of

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a petition that he also filed in the California Supreme Court; and, if appropriate, petitioner shall

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file a motion to stay these proceedings.

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DATED: March 19, 2013

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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meye0958.mtd

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