Johnson v. Kernan et al

Filing 36

ORDER signed by Magistrate Judge Allison Claire on 1/8/2019 VACATING respondent's 22 motion to dismiss and DENYING as moot petitioner's 23 motion for a stay. Within 30 days, petitioner may file an amended petition. If petitioner fails to file an amended petition, the case will proceed on the original petition. (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 C. JOHNSON,

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No. 2:17-cv-2525 JAM AC P

Petitioner,
v.

ORDER

SCOTT KERNAN, et al.,
Respondents.

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Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed a petition for

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a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Currently before the court is respondent’s

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motion to dismiss the petition as unexhausted (ECF No. 22) and petitioner’s motion for stay (ECF

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No. 23). However, petitioner has now filed a motion to amend in which he advises the court that

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he has exhausted his state court remedies and requests leave to file an amended petition. ECF No.

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35. Attached to the motion is a copy of the California Supreme Court’s order denying his state

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petition. Id. at 3. Since petitioner now represents that his claims are exhausted, the motion for

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stay will be denied as moot. Furthermore, in light of petitioner’s representation that the petition is

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now fully exhausted and his request to amend the petition, the motion to dismiss will be vacated

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and petitioner will be provided an opportunity to file an amended petition. After petitioner has

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filed an amended petition, or his time for doing so passes, respondent shall have an opportunity to

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file a new motion to dismiss or an answer.
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Accordingly, IT IS HEREBY ORDERED that:

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1. Respondent’s motion to dismiss (ECF No. 22) is vacated.

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2. Petitioner’s motion for stay (ECF No. 23) is denied as moot.

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3. Within thirty days of service of this order, petitioner may file an amended petition. If

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petitioner fails to file an amended petition, the case will proceed on the original petition.

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DATED: January 8, 2019

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