O'Neill v. State of California

Filing 24

ORDER signed by Magistrate Judge Kendall J. Newman on 2/22/2017 DENYING without prejudice petitioner's 23 motion to reopen the case. (Yin, K)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 NEAL O’NEILL, 11 12 13 No. 2:16-cv-0417 KJN P Petitioner, v. ORDER STATE OF CALIFORNIA, 14 Respondent. 15 16 Petitioner is a state prisoner, proceeding without counsel. On June 23, 2016, this action 17 was dismissed without prejudice. On July 29, 2016, petitioner filed an appeal, which remains 18 pending. On February 2, 2017, petitioner filed a motion to reopen the case. Petitioner asks the 19 court to permit him to submit the missing page eight that would inform the court and respondent 20 whether petitioner was pursuing one or two claims. However, the instant petition was not 21 dismissed on the basis of the missing page; indeed, the missing page 8 was located and scanned in 22 by the clerk. (ECF No. 13 at 2-4, n.2.) Moreover, the petition was dismissed because petitioner’s 23 direct appeal was pending in state court. Thus, petitioner’s motion does not raise a substantial 24 issue at this time. Fed. R. Civ. P. 62.1. Accordingly, IT IS HEREBY ORDERED that 25 petitioner’s motion is denied (ECF No. 23) without prejudice. 26 Dated: February 22, 2017 27 28 /onei0417.62.1 1

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