Nolen v. Valenzuela

Filing 30

ORDER signed by Magistrate Judge Deborah Barnes on 9/25/2017 ORDERING Petitioner to file a second amended complaint within 14 days of the date of service of this order. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JIMMY GARFIELD NOLEN,

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Petitioner,

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No. 2:16-cv-0041 DB

v.

ORDER

E. VALENZUELA,

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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 filed his initial petition on December 22, 2015. (ECF No. 1.) Respondent filed

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an answer on April 22, 2016. (ECF No. 18.) On May 13, 2016, petitioner filed a motion to stay

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his petition and hold it in abeyance while he exhausts the unexhausted claims in state court. (ECF

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No. 20.) On September 16, 2016, petitioner filed a first amended petition for writ of habeas

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corpus. (ECF No. 22.) The claims in the amended petition are the same as in the original;

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however, in the amended petition, petitioner indicated that all claims were exhausted in state

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court. (Id.) Therefore, the court ordered that petitioner’s motion to stay was moot since there

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were no longer unexhausted claims in state court, which would necessitate a stay. (ECF No. 23.)

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Additionally, the court ordered respondent to address petitioner’s first amended petition. (Id.)

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After receiving an extension of time to address the first amended petition (ECF No. 26),

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respondent filed a motion to vacate the order requiring a response because petitioner failed to sign

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and verify the first amended petition. (ECF No. 27.) The court’s review of the first amended

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petition confirmed that petitioner failed to sign and verify the document, leaving the signature line

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blank on page 15. (ECF No. 22 at 15.) Thus, the petition was in violation of 28 U.S.C. § 2242,

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the Rules Governing Section 2254 Cases, and the Local Rules. Accordingly, the undersigned

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vacated the order requiring respondent answer the first amended petition and dismissed the first

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amended petition without prejudice. (ECF No. 29.) Petitioner was ordered to, within 14 days,

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file a second amended petition that complies with the rules concerning verification (as well as all

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other rules governing 2254 petitions). (Id.)
The 14-day deadline is now expired and petitioner did not file a second amended petition.

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Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for

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failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.

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1992); see also Local Rule 110.

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The court hereby grants petitioner one more opportunity to comply with the direction to

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file a second amended petition. IT IS HEREBY ORDERED that petitioner shall file a second

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amended complaint within 14 days of the date of service of this order. Failure to comply with

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this order may result in a recommendation of dismissal.

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Dated: September 25, 2017

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TIM-DLB:10
DB / ORDERS / ORDERS.PRISONER.HABEAS / nole0041.dismiss

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