King v. Davey

Filing 73

ORDER signed by Magistrate Judge Edmund F. Brennan on 2/4/2019 ORDERING, as a one-time only courtesy, the Clerk shall mail petitioner copies of Docket Nos. 67 and 68 . Petitioner's 72 third amended petition is DISREGARDED and the 51 second amended complaint will remain operative and be deemed submitted. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JERRY LEE KING,

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No. 2:16-cv-1464-WBS-EFB P

Petitioner,

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v.

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DAVE DAVEY,

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ORDER

Respondent.

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Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to

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28 U.S.C. § 2254. Pending before the court are petitioner’s request for copies (ECF No. 70) and

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request for clarification (ECF No. 71). He has also filed a third amended petition (ECF No. 72).

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Petitioner seeks copies of docket entries numbers sixty-seven and sixty-eight. Generally,

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the Clerk’s Office will provide copies of documents at the cost of $0.50 per page. Here, however,

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petitioner asserts that all of his property has been lost by the California Department of Corrections

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and Rehabilitation. ECF No. 70. Thus, in this one instance, the court will direct the Clerk of

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Court to mail petitioner copies of the foregoing documents as a one-time courtesy. He will be

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required to pay for any future copies he requests.

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Petitioner also requests clarification of the status of his petition. ECF No. 71. He states

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that he does not understand either why his petition has been mooted or how to “fix” it. Id. He

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appears to be referring to the court’s November 27, 2018 order wherein the court granted his
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request for an extension of time to file an amended petition and denied as moot his redundant

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motion to amend. ECF No. 69. That order also directed plaintiff to file his amended petition

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within sixty days. Id. The current posture of the case is as follows:

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

On February 10, 2017, it was recommended that respondent’s motion to dismiss be

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granted and that the petition be dismissed with leave to amend so that petitioner

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could file a fully exhausted petition and seek a Kelly stay. ECF No. 35.

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

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On March 27, 2017, those recommendations were adopted by the district judge.
ECF No. 36.

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

On March 31, 2017, petitioner filed an amended petition. ECF No. 38.

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

On April 14, 2017, Petitioner filed a motion to stay. ECF No. 40.

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

On July 12, 2017, it was recommended that the motion to stay be denied and the

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amended petition be dismissed with leave to amend due to its inclusion of

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unexhausted claims. ECF No. 50.

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

On August 15, 2017, petitioner filed a second amended petition. ECF No. 51.

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

On August 30, 2017, the aforementioned July recommendations were adopted by

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the district judge. ECF No. 52.
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On November 21, 2017, respondent filed an answer to the second amended
petition. ECF No. 58.

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On January 2, 2019, petitioner filed a third amended petition, again including
claims previously deemed unexhausted. ECF No. 72; see also ECF No 35.

Because petitioner’s third amended petition is not limited to his exhausted claims, as

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directed by the court, it will be disregarded. Thus, based on the foregoing, the operative petition

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in this case is the second amended petition. ECF No. 52. That petition has not, contrary to

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petitioner’s understanding, been mooted.

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Accordingly, IT IS ORDERED that:

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1. As a one-time courtesy, the Clerk of the Court shall mail petitioner copies of Docket

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Nos. 67 and 68;
2. Petitioner’s third amended petition (ECF No. 72) is disregarded; and
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3. The second amended petition (ECF No. 51) will remain operative and be deemed

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submitted.

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DATED: February 4, 2019.

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