Wood v. Gastelo

Filing 21

ORDER signed by Magistrate Judge Kendall J. Newman on 4/14/2017 DENYING 16 Motion to Dismiss as moot; DENYING 13 Motion for Stay as moot; ORDERING the respondent to file a response to the 1 Petition for Writ of Habeas Corpus within sixty (60) d ays; ORDERING the petitioner to file a reply, if any, to the respondent's answer, or to file an opposition or statement of non-opposition to the respondent's motion, within thirty (30) days after its service; ORDERING the respondent to file a reply in support of any motion fourteen (14) days thereafter; DENYING 19 Motion to Amend the Petition without prejudice. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BENJAMIN RANDOLPH WOOD,

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No. 2:16-cv-2621 MCE KJN P

Petitioner,
v.

ORDER

JOSIE GASTELO, Warden,
Respondent.

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Petitioner is a state prisoner, proceeding pro se and in forma pauperis. Petitioner is

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pursuing a petition for a writ of habeas corpus under 28 U.S.C. § 2254. On March 13, 2017,

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respondent filed a motion to dismiss the petition on the grounds that claims 1 - 6 are unexhausted.

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In the motion, respondent notes that petitioner’s state habeas petition in the California Supreme

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Court, in which petitioner appeared to be attempting to exhaust claims 1-6, was still pending.

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(ECF No. 16 at 2; 3, n.1.) With his petition, petitioner filed a motion to stay this action pending

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exhaustion. Respondent opposes petitioner’s request to stay this action based on petitioner’s

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failure to demonstrate good cause for the delay.

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The exhaustion of state court remedies is a prerequisite to the granting of a petition for

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writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived

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explicitly by respondents’ counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion, thus, may

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not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the
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highest state court with a full and fair opportunity to consider all claims before presenting them to

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the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d

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1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986).1

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On April 6, 2017, petitioner filed a notice stating that the California Supreme Court issued

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a decision on the merits of petitioner’s claims, fully exhausting all grounds for relief contained in

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the instant petition. (ECF No. 20 at 1.) Petitioner provided a copy of the order. In re Benjamin

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Randolph Wood on Habeas Corpus, No. S239484 (Cal. March 22, 2017). (ECF No. 20 at 5.)

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The state court petitions have now been addressed; thus, no stay is required. It appears the instant

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petition is now exhausted, rendering moot respondent’s motion to dismiss unexhausted claims.2

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Respondent is directed to file a response to petitioner’s habeas petition within sixty days.

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Finally, petitioner filed a motion to amend his petition to provide relevant transcripts.

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(ECF No. 19 at 15.) However, petitioner is not required to submit transcripts with his petition.

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Because petitioner does not seek to amend his claims, his motion to amend is denied without

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prejudice. The exhibits provided with his motion to amend will remain in the court file and may

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be referred to by any party. (ECF No. 19-1.)

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Respondent’s motion to dismiss (ECF No. 16) is denied as moot;

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2. Petitioner’s motion for stay (ECF No. 1 at 13-15) is denied as moot;

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3. Respondent is directed to file a response to petitioner’s habeas petition within sixty

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days from the date of this order. See Rule 4, 28 U.S.C. foll. § 2254. An answer shall be

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accompanied by all transcripts and other documents relevant to the issues presented in the

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petition. See Rule 5, 28 U.S.C. foll. § 2254;
4. If the response to the habeas petition is an answer, petitioner’s reply, if any, shall be

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filed and served within thirty days after service of the answer;

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A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C.
§ 2254(b)(2).
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This ruling does not address the application of the Antiterrorism and Effective Death Penalty
Act’s (“AEDPA”) one-year limitation period.
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5. If the response to the habeas petition is a motion, petitioner’s opposition or statement

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of non-opposition to the motion shall be filed and served within thirty days after service of the

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motion, and respondent’s reply, if any, shall be filed and served within fourteen days thereafter;

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and

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6. Petitioner’s motion to amend (ECF No. 19 at 15) is denied without prejudice.
Dated: April 14, 2017

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/wood2621.100.mtd

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