Rood v. Swarthout

Filing 14

ORDER signed by Magistrate Judge Gregory G. Hollows on 9/25/2012 DENYING petitioner's 12 motion to stay. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD VINCENT ROOD,
Petitioner,

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vs.

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No. 2:12-cv-1476 GGH P

GARY SWARTHOUT,
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. This case is before the undersigned pursuant to

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petitioner’s consent. Doc. 7. On July 5, 2012, the court noted that the petition contained one

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claim that appeared fully exhausted, however petitioner also filed a motion to appoint counsel to

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look into new evidence that had been recently discovered so petitioner could bring additional

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claims. Petitioner stated that the trial judge’s husband was a detective in the police department

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that arrested petitioner and this could lead to a new claim. Counsel was not appointed, however

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the process of staying the case to exhaust additional claims was described to petitioner and he

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was provided 21 days to file a motion to stay. Petitioner was informed that failure to respond

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would result in this case continuing on the current petition.

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Petitioner did not respond to the court’s order, so on August 23, 2012, the petition

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was served on respondent who was ordered to file a response. On September 13, 2012, petitioner

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filed a one page motion. Petitioner does not formally ask for a stay and simply states he needs an

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attorney or more time as he is in administrative segregation and is not a lawyer. Regarding the

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actual claim petitioner wishes to investigate to exhaust, he only states that his trial judge’s

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husband was a major crimes investigator with petitioner’s arresting agency. Without any more

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information, which it does not appear petitioner has, this fails to state a viable habeas claim that

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would warrant the appointment of counsel and staying this case.
Accordingly, IT IS HEREBY ORDERED that petitioner’s motion (Doc. 12) is

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denied.

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DATED: September 25, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:mp

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rood1476.ord2

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