Lockhart v. Hedgpeth

Filing 29

ORDER LIFTING STAY; GRANTING LEAVE TO FILE AMENDED PETITION AND MOTIONS; TO SHOW CAUSE REGARDING NEW CLAIM; INSTRUCTIONS TO CLERK. Signed by Judge Jeffrey S. White on 4/9/12. (jjoS, COURT STAFF) (Filed on 4/9/2012)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 ERIC LOCKHART, 12 13 14 15 16 Petitioner, vs. TONY HEDGPETH, Warden, Respondent. ) ) ) ) ) ) ) ) ) ) ) No. C 08-2935 JSW (PR) ORDER LIFTING STAY; GRANTING LEAVE TO FILE AMENDED PETITION AND MOTIONS; TO SHOW CAUSE REGARDING NEW CLAIM; INSTRUCTIONS TO CLERK (Docket Nos. 24-27) 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner, a prisoner of the State of California, has filed a habeas corpus petition pursuant to 28 U.S.C. § 2254. Respondent was ordered to show cause why the petition, setting forth eleven claims, should not be granted. Respondent filed an answer to the petition, and petitioner filed a traverse. Petitioner was then granted a stay in order to exhaust his additional claims in federal court. He has filed a motion to lift the stay, explaining that his new claim has now been exhausted, and a motion for leave to file an amended petition that includes his newlyexhausted claim. Good cause appearing, the motion to lift the stay and the motion for leave to file an amended petition are GRANTED. (Docket Nos. 26 and 27.) The stay is LIFTED. The motion for an extension of time in which to file the motion to lift the stay is also GRANTED. (Docket No. 24.) The motion for relief from judgment is DENIED as 1 2 unnecessary because there has been no judgment in this case. (Docket No. 25.) Respondent shall file with the Court and serve on Petitioner, within sixty (60) days 3 of the issuance of this order, a supplemental answer conforming in all respects to Rule 5 of 4 the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus 5 should not be granted based on Petitioner’s newly exhausted claim – the twelfth claim in 6 the amended petition. Respondent shall file with the supplemental answer and serve on 7 Petitioner a copy of any new portion of the state trial record that have been transcribed 8 previously and that are relevant to a determination of the issues presented by the amended 9 petition. If Petitioner wishes to respond to the supplemental answer, he shall do so by 10 filing a supplemental traverse with the Court and serving it on Respondent within thirty 11 (30) days of the date the answer is filed. 12 Alternatively, Respondent may file a motion to dismiss the newly-exhausted claim 13 on procedural grounds. If Respondent files such a motion, Petitioner shall file with the 14 Court and serve on Respondent an opposition or statement of non-opposition within thirty 15 (30) days of the date the motion is filed, and Respondent shall file with the Court and serve 16 on Petitioner a reply within fifteen (15) days the date the opposition is filed. 17 18 19 20 21 22 The Clerk shall lift the stay, file the amended complaint, and administratively reopen the file. IT IS SO ORDERED. DATED: April 9, 2012 JEFFREY S. WHITE United States District Judge 23 24 25 26 27 28 2 1 UNITED STATES DISTRICT COURT 2 FOR THE 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 6 ERIC LOCKHART, Plaintiff, 7 8 9 10 Case Number: CV08-02935 JSW CERTIFICATE OF SERVICE v. TONY HEDGPETH et al, Defendant. / 11 12 13 14 15 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on April 9, 2012, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 16 17 18 Eric Lockhart V-17246 P.O. Box 290066 Represa, CA 95671-0066 19 20 21 22 23 24 25 26 27 28 Dated: April 9, 2012 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk

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