Pagan v. Pfeiffer

Filing 27

ORDER to SHOW CAUSE signed by Magistrate Judge Kendall J. Newman on 8/30/2018 ORDERING within 30 days, petitioner shall Show Cause why the undersigned should not strike petitioner's amended petition as a mixed petition, and direct respondent to respond to petitioner's 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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NICO PAGAN,

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No. 2:18-cv-0240 MCE KJN P
Petitioner,

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v.

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ORDER TO SHOW CAUSE

CHRISTEN PFEIFFER,

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Respondent.

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Petitioner is a state prisoner, proceeding pro se. On July 16, 2018, petitioner was granted

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an extension of time in which to comply with the court’s May 1, 2018 order. Thirty days have

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now passed, and petitioner has not filed a second amended petition or a motion for stay.

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However, review of the record reveals petitioner has had difficulty receiving his legal mail, as

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well as gaining access to the law library. In addition, the original petition raises only petitioner’s

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exhausted claim for relief. Therefore, petitioner shall show cause, within thirty days, why the

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undersigned should not strike petitioner’s amended petition (ECF No. 17) as a mixed petition

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containing both exhausted and unexhausted claims, and direct respondent to respond to

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petitioner’s original petition.1 Failure to respond to this order will result in the court issuing an

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This order does not preclude petitioner from returning to state court and exhausting his new
claims. Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008) (If a new petition is filed when a
previous habeas petition is still pending before the district court without a decision having been
rendered, then the new petition should be construed as a motion to amend the pending petition.)
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order striking petitioner’s amended petition, and this action proceeding on petitioner’s original

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petition.

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Accordingly, IT IS HEREBY ORDERED that within thirty days, petitioner shall show

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cause why the undersigned should not strike petitioner’s amended petition as a mixed petition,

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and direct respondent to respond to petitioner’s original petition.

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Dated: August 30, 2018

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/paga0240.osc

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As petitioner has been advised, a one year statute of limitations is applicable to all claims
presented in a federal habeas corpus petition. See 28 U.S.C. § 2244(d)(1); see also Mardesich v.
Cate, 668 F.3d 1164 (9th Cir. 2012) (holding that the one year statute of limitations applied to
each claim in a habeas petition on an individual basis).
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