Caldwell v. People of the State of California
Filing
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ORDER signed by Magistrate Judge Carolyn K. Delaney on 12/5/2018 VACATING 20 Findings and Recommendations, GRANTING 21 Request for Leave to Amend, DISMISSING 1 Petition for Writ of Habeas Corpus, and DENYING AS MOOT 16 Motion to Dismiss. Petitioner is GRANTED 30 days within which to file a petition for writ of habeas corpus. When the amended petition is filed, the court will address petitioner's request for a stay. Petitioner's failure to file an amended petition within 30 days will result in a recommendation that this action be dismissed. Respondent need take no further action until receiving further direction from the court. (Huang, H)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DERRICK R. CALDWELL,
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Petitioner,
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v.
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No. 2:18-cv-0712 WBS CKD P
ORDER
MICHAEL SEXTON,
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Respondent.
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Petitioner is a California prisoner proceeding pro se with a petition for writ of habeas
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corpus pursuant to 28 U.S.C. § 2254. On November 1, 2018, the court found that petitioner failed
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to exhaust state court remedies as to claim 1. That being the case, the court recommended that
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the petition be dismissed, and that petitioner be granted leave to file an amended petition asserting
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only claims 2 and 3.
On November 9, 2018, petitioner filed a document titled “Petitioner Request To Leave To
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Amend Unexhausted Claim And Stay Petition.” There is no text provided in the filing beyond
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the title. However, in light of the guidance provided to petitioner in the court’s November 1,
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2018 findings and recommendations,1 the court construes the November 9th document as a
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Petitioner was informed:
Pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), petitioner
could also move to stay any amended petition, which includes only
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motion for leave to file an amended habeas petition in which petitioner asserts only claims 2 and
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3, and a motion for a stay pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003).
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In light of the foregoing, IT IS HEREBY ORDERED that:
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1. The court’s November 1, 2018 findings and recommendations are vacated.
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2. Petitioner’s request for leave to amend (ECF No. 21) is granted.
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3. Petitioner’s petition for a writ of habeas corpus is dismissed.
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4. Respondent’s motion to dismiss (ECF No. 16) is denied as moot.
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5. Petitioner is granted 30 days within which to file a petition for writ of habeas corpus
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which includes only the claims identified as claims 2 and 3 in his original petition. When the
amended petition is filed, the court will address petitioner’s request for a stay.
6. Petitioner’s failure to file an amended petition which complies with this order within
30 days will result in a recommendation that this action be dismissed.
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7. Respondent need take no further action until receiving further direction from the court.
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8. The Clerk of the Court is directed to send petitioner the court’s form-application for a
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writ of habeas corpus pursuant to 28 U.S.C. § 2254.
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Dated: December 5, 2018
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CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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cald0712.A&S
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those claims where state court remedies are exhausted, while he
seeks to exhaust state court remedies with respect to other claims.
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