Wallace v. Barnes

Filing 58

ORDER signed by Magistrate Judge Edmund F. Brennan on 08/26/15 ordering as no petition is currently pending before the court, the court denies the motions for discovery 44 and 52 without prejudice. Petitioner may refile his discovery motion after he has filed the amended petition. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GEORGE WALLACE,

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No. 2:14-cv-0157 MCE EFB P

Petitioner,
v.

ORDER

RON E. BARNES,
Respondent.

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Plaintiff is a state prisoner proceeding without counsel on a petition for writ of habeas

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corpus. 28 U.S.C. § 2254. He has filed two motions for leave to file an amended petition and

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two motions for discovery. ECF Nos. 44, 52, 53, 54.

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On February 13, 2015, the court dismissed the petition for failure to exhaust eight of the

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ten claims presented. ECF Nos. 43, 50. The court granted petitioner leave to file an amended

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petition within 30 days containing only exhausted claims while he returned to state court to

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exhaust the other claims. Id. The court emphasized that, within 30 days of the court’s order,

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petitioner must file “a petition stating only the claims he has exhausted thus far” and, at the same

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time, ask the court to stay the case while he exhausted the other claims. ECF No. 50 at 2.

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Nevertheless, petitioner has not filed the amended petition. Instead, he has filed two motions for

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leave to file an amended petition. ECF Nos. 53, 54. In the second of those motions, petitioner

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indicates that he has completed exhaustion of all of his claims. ECF No. 54.
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The court construes the motions for leave to file an amended petition as motions for an

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extension of time to file the amended petition, and grants the motions so construed. Within 30

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days of the date of this order, petitioner may file an amended petition containing only exhausted

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claims. Petitioner is admonished that failure to file the amended petition within that timeframe

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may result in dismissal of the case.

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Petitioner has also filed (twice) a motion for discovery. ECF Nos. 44, 52. As no petition

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is currently pending before the court, the court denies the motions for discovery without

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prejudice. Petitioner may refile his discovery motion after he has filed the amended petition.

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So ordered.

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DATED: August 26, 2015.

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