Meyers v. Warden of Centinela State Prison

Filing 25

ORDER signed by Magistrate Judge Kendall J. Newman on 06/10/13 ordering the clerk of the court is directed to send petitioner a copy of the petition for writ of habeas corpus filed in this court on 03/11/13 21 so that petitioner may mail a copy of that petition to the California Supreme Court for filing in that court. Petitioner is informed that the mailing address for the California Supreme Court is: Clerk, California Supreme Court, 350 McAllister Street, San Francisco, CA 94102-4797. Petitioner is granted 20 days from the date of this order to file in this action a motion to stay these proceedings. (cc: KJN) (Plummer, M) Modified on 6/11/2013 (Plummer, 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

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January 3, 2013, at 2-3. The court therefore granted petitioner sixty days to file either a motion

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

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ruling 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. It

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was not accompanied by a motion to stay these proceedings. Accordingly, by order filed March

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20, 2013, petitioner was granted one additional period of fifteen days in which to clarify whether

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

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petition that he has also filed in the California Supreme Court and, if so, whether he seeks to

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stay this action pending disposition of that state court action. Petitioner was cautioned that

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failure to comply with this order will result in the dismissal of his original petition for writ of

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habeas corpus on the ground that it is a mixed petition containing unexhausted claims.

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On May 3, 2013, petitioner filed a letter. It appears from the letter that the

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petition filed in this court on March 11, 2013, was intended for the California Supreme Court,

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and petitioner asks whether this court can transfer such petition to the California Supreme Court

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or whether he must redo the petition. Petitioner has not filed a motion to stay these proceedings.

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Petitioner is hereby informed that this court cannot file a petition for writ of

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habeas corpus on his behalf in the California Supreme Court. Good cause appearing, the Clerk

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of the Court will be directed to send petitioner a copy of the March 11, 2013 petition together

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with a copy of this order. Petitioner will be informed of the address of the California Supreme
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Court to which documents to be filed in that court should be mailed. Petitioner will also be

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granted one final period of twenty days in which to file in this court a motion to stay these

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proceedings pending exhaustion of state court remedies as to his unexhausted claims.

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

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1. The Clerk of the Court is directed to send petitioner a copy of the petition for

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writ of habeas corpus filed in this court on March 11, 2013 (ECF No. 21) so that petitioner may

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mail a copy of that petition to the California Supreme Court for filing in that court.
2. Petitioner is informed that the mailing address for the California Supreme

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Court is: Clerk, California Supreme Court, 350 McAllister Street, San Francisco, CA 941024797.
3. Petitioner is granted twenty days from the date of this order to file in this

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action a motion to stay these proceedings.

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DATED: June 10, 2013

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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meye0958.o

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