Thiessen v. Knipp et al

Filing 29

ORDER signed by Magistrate Judge Kendall J. Newman on 1/30/2014 ORDERING that the 1/14/2014 order to show cause is DISCHARGED; petitioner's 14 motion to stay is DENIED as moot; respondent's 26 request for an extension of time is GRANTED; and respondent has until 3/24/2014 to file a response to the petition. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SANDOR TORRES THIESSEN,

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No. 2:13-cv-0722 LKK KJN P

Petitioner,
v.

ORDER

WILLIAM KNIPP, et al.,
Respondents.

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Petitioner is a state prisoner proceeding without counsel. On July 22, 2013, petitioner

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filed a motion for stay and abeyance pending exhaustion of his state court remedies. On

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December 18, 2013, respondents filed an opposition to the request for stay, and motion to dismiss

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the petition as unexhausted. On January 14, 2014, petitioner was ordered to show cause why his

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failure to oppose respondents’ motion to dismiss should not be deemed a waiver of any

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opposition to the granting of the motion, and to file an opposition. However, on January 17,

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2014, respondents withdrew their motion to dismiss, stating that “it now appears that the claims in

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the instant federal petition have been exhausted.” (ECF No. 26 at 1.) Respondents provided a

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copy of the docket sheet for petitioner’s Case No. S213578 in the California Supreme Court,

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reflecting that petitioner filed a petition for writ of habeas corpus on September 23, 2013, which

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was denied without comment on January 15, 2014. (ECF No. 26-1 at 2.) Respondents seek an

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additional sixty days, until March 24, 2014, in which to file a response to the petition.
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On January 21, 2014, petitioner filed a response to the order to show cause, and an

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opposition to the motion to dismiss, and requested that his motion for stay be granted. In light of

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petitioner’s response, the order to show cause is discharged.

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Petitioner’s recent filing was dated January 16, 2014, the day before the California

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Supreme Court issued its ruling. The court has reviewed the petition filed in the California

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Supreme Court, and it includes the ineffective assistance of counsel claims raised in petitioner’s

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federal petition. (Compare Respondents’ Lodged Document 24 with ECF No. 1.) On January 15,

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2014, the California Supreme Court denied the petition without comment. (ECF No. 26-1 at 2.)

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Because it appears that petitioner’s claims are now exhausted, the court denies the motion for stay

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as moot. Respondents’ request for extension of time is granted. Petitioner is advised that if the

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response is a motion, his opposition is due twenty-one days after service of the motion. Local

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Rule 230(l). If the response is an answer, petitioner’s reply, if any, is due thirty days after service

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of the answer.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The January 14, 2014 order to show cause (ECF No. 25) is discharged;

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2. Petitioner’s motion for stay and abeyance (ECF No. 14) is denied as moot;

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3. Respondent’s January 17, 2014 request for extension of time (ECF No. 26) is granted;

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and
4. Respondent is granted until March 24, 2014, in which to file a response to the petition.
Dated: January 30, 2014

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thie0722.mts.moot

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