Montgomery v. Perry

Filing 29

ORDER signed by Magistrate Judge Allison Claire on 2/22/2016 VACATING respondent's deadline to respond to the petition. Within 21 days, respondent may file a response to petitioner's 27 request for stay and abeyance under Kelly. Respondent is not required to respond to the request for stay, but the absence of a response will be deemed consent to the issuance of a stay. (Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

AARON MONTGOMERY,

12
13
14
15

No. 2:15-cv-1220 AC P

Petitioner,
v.

ORDER

S. PERRY,
Respondent.

16
17
18
19

Petitioner is a state prisoner proceeding pros se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.
This court previously denied petitioner’s request for a stay and abeyance after finding that

20

petitioner had failed to provide the supplemental information he had been ordered to provide.

21

ECF No. 15. Petitioner has now filed another request to stay this case in which he states that he

22

did respond to the court’s October 16, 2015 order and indicates that his response may not have

23

reached the court because it was mishandled by prison staff. ECF No. 27. Petitioner states that

24

he did exhaust all the issues contained in the petition in state court. Id. Since petitioner is

25

asserting that the petition is fully exhausted, a stay under Kelly v. Small, 315 F.3d 1063 (9th Cir.

26

2003), which does not require a showing of good cause, may be appropriate. The court will

27

therefore vacate respondent’s deadline to respond to the petition and give respondent an

28

opportunity to respond to the motion for stay.
1

1

Accordingly, IT IS HEREBY ORDERED that:

2

1. Respondent’s deadline to respond to the petition is vacated.

3

2. Within twenty-one days of the filing of this order, respondent may file a response to

4

petitioner’s request for stay and abeyance under Kelly (ECF No. 27). Respondent is not required

5

to respond to the request for stay, but the absence of a response will be deemed consent to the

6

issuance of a stay.

7

DATED: February 22, 2016

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2