Pereira v. Swarthout

Filing 23

ORDER signed by Magistrate Judge Allison Claire on 11/16/15 ORDERING that Petitioner's request to treat his original petition as his amended petition (ECF No. 22 ) is DENIED. Petitioner shall have 30 days from the filing of this order to file an amended petition. The Clerk of the Court is directed to send petitioner a copy of the first 27 pages of the original petition (ECF No. 1 ) and a blank § 2254 petition for writ of habeas corpus form.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RONALD JOSEPH PEREIRA,

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No. 2:14-cv-0530 KJM AC P

Petitioner,
v.

ORDER

GARY SWARTHOUT,
Respondent.

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Petitioner is a state prisoner proceeding without counsel on an application for writ of
habeas corpus pursuant to 28 U.S.C. § 2254.
On June 4, 2014, the court struck Grounds 1 through 3 and 5 through 9 from the petition

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and granted petitioner’s request to stay the petition, which now contains only Ground 4. ECF No.

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15. The stay was granted and the case administratively closed to allow petitioner to exhaust his

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unexhausted claims in state court. Id. Petitioner was ordered to notify this court of any ruling

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from the California Supreme Court exhausting his then unexhausted claims, within thirty days of

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a ruling from that court. Id. Within that time he was also to request the stay be lifted and file an

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amended petition. Id. On September 21, 2015, the court received and docketed a request for

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status that suggested petitioner may have previously attempted to notify the court of the status of

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his attempts to exhaust his claims in state court. ECF No. 17. Petitioner was directed to file a

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status report advising the court of the status of his efforts to exhaust his state court remedies and
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whether he was seeking to lift the stay. ECF No. 18. Petitioner then filed a notice in which he

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advised that he had requested the stay be lifted over eight months ago. ECF No. 19.1 Petitioner’s

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request to lift the stay was granted and the case re-opened, and petitioner was ordered to notify

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the court whether he would be amending the petition to include any of the previously stricken

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claims. ECF No. 20.

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Petitioner has now responded to the order. Petitioner requests that the court consider the

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original petition as the amended petition because he no longer has any of his legal paperwork,

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including his original petition, to refer to in drafting an amended document. He states an

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intention to revive all of his original claims. ECF No. 22. Petitioner’s request will be denied.

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Instead, the Clerk of the Court will be directed to send petitioner a blank habeas petition form and

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the first twenty-seven pages of the original petition. Petitioner may file an amended petition

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which must include information regarding the exhaustion of the previously unexhausted claims as

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requested on the petition form. Upon filing of an amended petition, the Clerk of the Court will be

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directed to attach pages twenty-eight through one hundred sixty-three of the original petition as

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exhibits to the amended petition.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s request to treat his original petition as his amended petition (ECF No. 22)

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is denied.

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2. Petitioner shall have thirty days from the filing of this order to file an amended

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petition. The amended petition must include information regarding the exhaustion of the

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previously unexhausted claims as requested on the petition form. If petitioner does not file an

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amended petition, the case will proceed on Ground 4 of the original petition.

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It does not appear that the court received that request.
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3. The Clerk of the Court is directed to send petitioner a copy of the first twenty-seven

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pages of the original petition (ECF No. 1) and a blank § 2254 petition for writ of habeas corpus

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form.

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DATED: November 16, 2015

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