Gomez v. Unknown

Filing 4

ORDER signed by Magistrate Judge Gregory G. Hollows on 7/13/2018 DENYING, without prejudice to its renewal, 1 Motion for Stay and Abeyance. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALFREDO GOMEZ,

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Petitioner,

No. 2:18-cv-01738-GGH
ORDER

v.
UNKNOWN,
Respondent.

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Petitioner filed a Motion for Stay and Abeyance having recognized that he had yet to

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exhaust his state remedies but apparently seeking to avoid a statute of limitations problems. This

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court cannot, however, grant stay and abeyance in the absence of a properly drafted petition for

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habeas corpus to support the action. In non-capital cases, a petition is what commences the

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court’s jurisdiction to issue ruling; one cannot simply file a motion to extend time in which to file

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a petition. See Youngblood v. Evans, 2008 WL 916998 (E.D. Cal. 2008); Villacrez v. CA CDCR

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& BPH, 2016 WL 3519415 (E.D. Cal. 2016). Therefore, if petitioner is in need of stay and

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abeyance he must file a petition for the writ, and he may seek the relief he wants at the same time

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by filing his motion conjunctively with the filing of the petition.

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The court will assist petitioner by ordering that he be sent this court’s habeas petition

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format which provides some structural guidance to the drafting of a petition along with the court’s

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in forma pauperis application form. Petitioner is advised that he must either seek in forma

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pauperis status at the time of filing his petition or he must pay the fee required by this court.

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In light of the foregoing IT IS HEREBY ORDERED that:

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1.

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Petitioner’s motion for stay and abeyance is DENIED without prejudice to its

renewal;
2.

The Clerk of the Court shall send petitioner a copy of this court’s habeas corpus

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petition form and its in forma pauperis application form.

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Dated: July13, 2018

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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