Sciosciole v. Gower

Filing 35

ORDER signed by Magistrate Judge Carolyn K. Delaney on 3/26/15 ORDERING that Petitioners motion for leave to file an amended petition for writ of habeas corpus 30 is denied; Petitioners amended petition for writ of habeas corpus 26 is stricken ; Petitioner is granted 30 days within which to file a motion to stay this action which conforms with the requirements listed above; and Petitioners failure to file a motion to stay which conforms to the requirements of this order within 30 days will result in this matter proceeding on petitioners original petition for writ of habeas corpus.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EDWARD FRANCIS SCIOSCIOLE,

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No. 2:13-cv-2438 CKD P

Petitioner,

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v.

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GOWER,

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ORDER

Respondent.

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Petitioner is a California prisoner proceeding pro se with a petition for writ of habeas

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corpus under 28 U.S.C. § 2254. He is serving a sentence of 30 years-to-life imprisonment for

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second degree robbery and certain sentence enhancements.1 Both parties have consented to have

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all matters in this action before a United States Magistrate Judge. See 28 U.S.C. § 636(c).
Petitioner’s motion for leave to file an amended petition is before the court as is the

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proposed amended petition. From the briefing before the court, and a review of the record, it is

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clear that petitioner has not exhausted state court remedies with respect to any new claims not

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presented in his original petition. That being the case, petitioner’s motion for leave to amend will

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be denied.2

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Petitioner was sentenced pursuant to California’s “Three Strikes Law.”

The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of
habeas corpus. 28 U.S.C. § 2254(b)(1).
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If petitioner would like to return to state court to exhaust state court remedies with respect

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to additional claims, he must, within 30 days, file a motion for a stay in which he clearly

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identifies his new claims and explains the delay in exhausting state court remedies. If petitioner

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does not file a motion for a stay within 30 days, this action will proceed on petitioner’s original

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petition for writ of habeas corpus which is already fully briefed.

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

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1. Petitioner’s motion for leave to file an amended petition for writ of habeas corpus

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(ECF No. 30) is denied;
2. Petitioner’s amended petition for writ of habeas corpus (ECF No. 26) is stricken;
3. Petitioner is granted 30 days within which to file a motion to stay this action which
conforms with the requirements listed above; and

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4. Petitioner’s failure to file a motion to stay which conforms to the requirements of this

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order within 30 days will result in this matter proceeding on petitioner’s original petition for writ

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of habeas corpus.

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Dated: March 26, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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scio2438.mta

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