Clark v. Fisher

Filing 32

ORDER signed by Magistrate Judge Gregory G. Hollows on 12/17/18 VACATING 31 Order as superfluous and DIRECTING plaintiff to file an amended petition within 30 days. Petitioner is advised that this order is not optional. (Coll, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAKE CLARK,

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No. 2:17-cv-02574-TLN-GGH
Petitioner,

ORDER

v.
RAYTHEL FISHER, JR.,
Respondent.

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Petitioner filed a habeas corpus complaint on December 8, 2017, ECF No. 1, along with a

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Motion to Proceed In Forma Pauperis (“IFP”). ECF No. 2. The court granted IFP status on

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December 27, 2017, and directed service of the action on the California Attorney General. ECF

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No. 8. On February 23, 2018, respondent filed a Motion to Dismiss the petition on the basis that

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petitioner had not exhausted the majority of his claims through appeal to the California Supreme

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Court. ECF No. 17.

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On March 12, 2018 petitioner filed a Motion for a 30 day extension of time to file a

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Motion for Stay and Abeyance. ECF No. 19. Before the court issued an Order granting the

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extension, ECF No. 20, petitioner filed an opposition to respondent’s Motion to Dismiss on

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March 21, 2018. ECF No. 21. On May 11, 2018 the court issued an Order redenominating

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petitioner’s opposition to an affirmative Motion for Stay and Abeyance and directed respondent

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to file his opposition, if any, within 30 days of the issuance of that Order. ECF No. 22.

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Respondent sought and was granted a 30 day extension of time to respond to the petitioner’s

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motion, ECF Nos 23, 24, and petitioner filed an opposition thereto on July 10, 2018. ECF No.

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25.

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On September 4, 2018 the court issued an Order dismissing both the petition and the

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motion for stay and abeyance with leave to amend within 30 days in conformity with instructions

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given in the order as to the proper content of both documents. ECF No. 29. Petitioner has not

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responded to this Order, except to brief the merits of some claims. ECF No. 30.

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By petitioner’s not completing what was ordered by the undersigned, the pleadings in this

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case are non-cognizable. The court cannot pick and choose from various filings what the issues

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actually are in this case, and whether those issues have been exhausted, or will be subject to stay.

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Given the dismissal order in ECF No. 29, there is no petition pending at this time.

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Accordingly, petitioner is again ORDERED to file an amended petition within thirty days

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being careful to list each issue specifically, give the specific facts related to each issue, state

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whether each issue is exhausted and, if not, why the court should hold the petition in abeyance.

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Petitioner may repeat his merits argument of ECF No. 30, if petitioner desires the court to take

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such arguments into account. The exhaustion statement shall include the facts relating to why

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the issue was not exhausted previously, i.e., whether petitioner has exercised diligence in

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requesting the stay and abeyance for each issue. The exhaustion statement will be utilized by the

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undersigned in opposition to respondent’s objections to granting a stay and abeyance, see ECF.

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No. 25.

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ECF No. 31 is vacated as superfluous.

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Petitioner is advised that this Order, as was the Order in ECF No. 29, is not optional. If

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the amended petition is not filed in accordance with the terms of this Order, a recommendation

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will be made that the entire action be dismissed.

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IT IS SO ORDERED.
Dated: December 17, 2018
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
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