Schmitz v. Lizarraga

Filing 18

ORDER signed by Magistrate Judge Allison Claire on 5/16/2014 GRANTING respondent's 17 unopposed motion to vacate the 5/21/2014 hearing date from the court's calendar; DENYING, as moot, the 2 , 9 motions to stay; respondent is DIRECTED to file a response to the first amended petition within 60 days.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM THOMAS SCHMITZ,

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No. 2:14-cv-0659 TLN AC P

Petitioner,
v.
JOE A. LIZZARAGA, Warden,

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ORDER

Respondent.

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Petitioner, a state prisoner proceeding with retained counsel, filed an application for a writ

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of habeas corpus pursuant to 28 U.S. § 2254. A hearing on a motion to stay and abey proceedings

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on a mixed petition, pursuant to Rhines v. Weber, 544 U.S. 269 (1995), was scheduled for

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hearing on May 21, 2014. However, petitioner has notified this court that the California Supreme

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Court denied his petition on April 30, 2014, exhausting his claims. ECF No. 15. Petitioner has

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filed a first amended petition that appears to contain exhausted claims only. ECF No. 16.

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Respondent has now filed an unopposed motion to remove the hearing from the court’s calendar.

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ECF No. 17. The hearing will accordingly be vacated and the pending motions to stay will be

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denied as moot.

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Since petitioner may be entitled to relief if the claimed violation of constitutional rights is
proved, respondent will be directed to file a response to petitioner’s first amended habeas petition.

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Accordingly, IT IS ORDERED as follows:

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1. Respondent’s unopposed motion to vacate the May 21, 2014 hearing date from the

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court’s calendar (ECF No. 17) is GRANTED; and

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2. The motions to stay (ECF No. 2 and ECF No. 9) are DENIED as moot;

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3. Respondent is directed to file a response to petitioner’s first amended habeas petition

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within sixty days from the date of this order. See Rule 4, 28 U.S.C. foll. § 2254. An answer shall

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be accompanied by all transcripts and other documents relevant to the issues presented in the

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petition. See Rule 5, 28 U.S.C. foll. § 2254;

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4. If the response to the first amended habeas petition is an answer, petitioner’s reply, if
any, shall be filed and served within thirty days after service of the answer;
5. If the response to the first amended habeas petition is a motion, it shall be noticed for

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hearing and briefed responsively pursuant to Local Rule 230.

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DATED: May 16, 2014

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