McClendon v. Tilton

Filing 17

ORDER DIRECTING RESPONDENT TO SHOW CAUSE WHY SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS SHOULD NOT BE GRANTED; DIRECTIONS TO CLERK. Signed by Judge Maxine M. Chesney on January 24, 2012. (mmcsec, COURT STAFF) (Filed on 1/24/2012) (Additional attachment(s) added on 1/24/2012: # 1 Certificate of Service) (tlS, COURT STAFF).

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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 11 For the Northern District of California United States District Court 10 12 13 14 15 16 ANDRE D. McCLENDON, ) ) Petitioner, ) ) v. ) ) JAMES TILTON, Director, ) California Department of Corrections ) and Rehabilitation, ) ) Respondent. ) ______________________________ ) No. C 09-0647 MMC (PR) ORDER DIRECTING RESPONDENT TO SHOW CAUSE WHY SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS SHOULD NOT BE GRANTED; DIRECTIONS TO CLERK 17 18 On February 13, 2009, petitioner, a California prisoner proceeding pro se, filed the 19 above-titled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On September 20 27, 2010 the Court granted respondent’s motion to dismiss the petition as a “mixed” petition 21 that contained both exhausted and unexhausted claims, and directed petitioner either to file 22 an amended petition that included only his exhausted claims and omitted the unexhausted 23 claims, or to file a request for a stay of this matter for the purpose of his exhausting his 24 unexhausted claims in state court. On October 27, 2010, petitioner filed an amended petition. 25 Thereafter, on December 13, 2011, the Court granted respondent’s second motion to 26 dismiss the petition as a “mixed” petition, on the ground that the amended petition retained 27 certain unexhausted claims. Petitioner was again directed to either file an amended petition 28 that included only exhausted claims or to file a request for a stay. 1 2 Now pending before the Court is petitioner’s second amended petition from which he has stricken the unexhausted claims. 3 Good cause appearing, the Court orders as follows: 4 1. The Clerk shall serve by certified mail a copy of this order and the second amended 5 petition (Docket No. 16), upon respondent and respondent’s counsel, the Attorney General 6 for the State of California. The Clerk shall also serve a copy of this order on petitioner. 7 2. Respondent shall file with the Court and serve on petitioner, within ninety (90) 8 days of the date this order is filed, an answer conforming in all respects to Rule 5 of the 9 Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted based on petitioner’s cognizable claims. Respondent shall file with the answer 11 For the Northern District of California United States District Court 10 and serve on petitioner a copy of all portions of the state trial record that have been 12 transcribed previously and that are relevant to a determination of the issues presented by the 13 petition. 14 15 16 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the Court and serving it on respondent within thirty (30) days of the date the answer is filed. 3. In lieu of an answer, respondent may file, within ninety (90) days of the date this 17 order is filed, a motion to dismiss on procedural grounds, as set forth in the Advisory 18 Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If respondent files 19 such a motion, petitioner shall file with the Court and serve on respondent an opposition or 20 statement of non-opposition within thirty (30) days of the date the motion is filed, and 21 respondent shall file with the Court and serve on petitioner a reply within fifteen (15) days of 22 the date any opposition is filed. 23 24 25 4. Petitioner is reminded that all communications with the Court must be served on respondent by mailing a true copy of the document to respondent’s counsel. 5. It is petitioner’s responsibility to prosecute this case. Petitioner must keep the 26 Court and respondent informed of any change of address and must comply with the Court’s 27 orders in a timely fashion. Failure to do so may result in the dismissal of this action for 28 failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 2 1 2 3 4 5 6. Upon a showing of good cause, requests for a reasonable extension of time will be granted as long as they are filed on or before the deadline they seek to extend. IT IS SO ORDERED. DATED: January 24, 2012 _________________________ MAXINE M. CHESNEY United States District Judge 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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