Sermeno v. Spearman

Filing 29

ORDER signed by Magistrate Judge Deborah Barnes on 02/13/17 denying 12 Motion to Stay as moot. By separate order, the court will screen the first amended petition and address petitioner's recently filed motion for reconsideration 23 . (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LARRY ALTAMIRANO SERMENO,

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No. 2:14-cv-02729 DB P

Petitioner,
v.

ORDER

M.E. SPEARMAN,
Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner is now proceeding on his first amended

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petition. (ECF No. 9.)

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Petitioner filed his initial petition on November 20, 2014. (ECF No. 1.) On August 17,

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2015, then-Magistrate Judge Dale A. Drozd entered an order dismissing the petition for failure to

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exhaust all claims in state court. (ECF No. 8.) However, the court afforded petitioner the

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opportunity to file an amended petition along with a motion for stay and abeyance pursuant to

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Rhines v. Weber, 544 U.S. 269, 273 (2005). Petitioner then timely filed the first amended

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petition (ECF No. 9) and motion for stay and abeyance (ECF No. 12).

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On August 2, 2016, the case was reassigned to the undersigned. (ECF No. 16.) On

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November 23, 2016, the undersigned entered an order requiring petitioner to file a statement

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explaining whether he had exhausted all six claims raised in the first amended petition by raising
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them and receiving a ruling from the California Supreme Court. (ECF No. 19.) Petitioner timely

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filed a statement on the record affirming that all six claims were exhausted in state court. (ECF

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No. 21.)

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Accordingly, the petitioner’s motion to stay is moot since there are no longer unexhausted

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claims in state court, which would necessitate a stay. Therefore, IT IS HEREBY ORDERED that

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petitioner’s motion to stay (ECF No. 12) is denied as moot. By separate order, the court will

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screen the first amended petition and address petitioner’s recently-filed motion for

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reconsideration (ECF No. 23).

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Dated: February 13, 2017

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TIM-DLB:10
DB / ORDERS / ORDERS.PRISONER.HABEAS / serm2729.rhines

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