McCarty v. Kernan

Filing 15

ORDER signed by Magistrate Judge Kendall J. Newman on 5/16/2018 ORDERING, within 14 days, petitioner shall inform the court whether he has now exhausted his state court remedies and wishes to proceed with the instant 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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KENNETH G. MCCARTY,

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Petitioner,

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v.

No. 2:18-cv-0037 KJN P

ORDER

SCOTT KERNAN,

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Respondent.

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Petitioner is a state prisoner, proceeding pro se, with an application for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. On April 11, 2018, petitioner was granted thirty days in

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which to file a motion for stay. On May 11, 2018, petitioner filed a response, stating he is willing

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to exhaust his state court appeal in the California Supreme Court while the instant petition is

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voluntarily dismissed. Petitioner states he will file again after he exhausts in state court.
However, the California Supreme Court website reflects that petitioner filed a petition for

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writ of habeas corpus on February 26, 2018, which was recently denied on May 9, 2018 in case

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No. S247273.1 If the petition filed in the California Supreme Court is the same petition as the one

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The court may take judicial notice of facts that are “not subject to reasonable dispute
because it . . . can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned,” Fed. R. Evid. 201(b), including undisputed information posted on
official websites. Daniels-Hall v. National Education Association, 629 F.3d 992, 999 (9th Cir.
2010). It is appropriate to take judicial notice of the docket sheet of a California court. White v.
Martel, 601 F.3d 882, 885 (9th Cir. 2010). The address of the official website of the California
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filed herein, petitioner may have now exhausted his state court remedies. Petitioner was

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previously cautioned about the one year statute of limitations.

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Thus, in an abundance of caution, petitioner is granted fourteen days to inform the court

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whether he has now exhausted his state court remedies and wishes to proceed with the instant

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petition. Failure to respond to this order will result in an order granting petitioner’s request to

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voluntarily dismiss this action without prejudice.

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Good cause appearing, IT IS HEREBY ORDERED that within fourteen days, petitioner

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shall inform the court whether he has now exhausted his state court remedies and wishes to

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proceed with the instant petition.

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Dated: May 16, 2018

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/cw/mcca0037.103.fb

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state courts is www.courts.ca.gov.
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