Dudney v. Macomber

Filing 40

ORDER GRANTING MOTION TO REOPEN CASE AND LIFT STAY, INSTRUCTING CLERK TO FILE SECOND AMENDED PETITION, AND ISSUING ORDER TO SHOW CAUSE by Judge Charles R. Breyer: Granting 39 Motion; Granting 39 Motion to Reopen Case. The deputy clerk hereby certifies that on 11/14/2017 a copy of this order was served by sending it via first-class mail to the address of each non-CM/ECF user listed on the Notice of Electronic Filing. (lsS, COURT STAFF) (Filed on 11/14/2017)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 THOMAS L. DUDNEY, AH-4570, Petitioner, 9 10 v. United States District Court Northern District of California 11 J. MACOMBER, Warden, 12 Respondent. 13 Case No. 14-cv-02574-CRB (PR) ORDER GRANTING MOTION TO REOPEN CASE AND LIFT STAY, INSTRUCTING CLERK TO FILE SECOND AMENDED PETITION, AND ISSUING ORDER TO SHOW CAUSE (ECF No. 39) On February 21, 2017, the court granted respondent’s motion to dismiss petitioner’s First 14 Amended Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 (FAP) for failure to 15 exhaust state judicial remedies as to portions of six of twenty-three claims due to his not fairly 16 presenting them to the Supreme Court of California. And pursuant to the law of the circuit, the 17 court gave petitioner the option of either withdrawing his unexhausted claims and proceeding only 18 on his exhausted claims, or of dismissing the entire mixed petition and returning to federal court 19 with a new petition once all claims are exhausted. ECF No. 31 at 7 (citing Jefferson v. Budge, 419 20 F.3d 1013, 1016 (9th Cir. 2005); Olvera v. Giurbino, 371 F.3d 569, 573 (9th Cir. 2004)). The 21 court also noted that petitioner may be able to obtain a stay if he can show that there was good 22 cause for his failure to exhaust the unexhausted claims in state court, and that the claims are 23 potentially meritorious. Id. at 7 n.1 (citing Rhines v. Webber, 544 U.S. 269, 277 (2005)). 24 Petitioner moved for reconsideration or, in the alternative, a stay under Rhines so he can properly 25 exhaust the unexhausted claims. 26 On May 31, 2017, the court denied petitioner’s motion for reconsideration, but granted his 27 motion for a stay under Rhines. ECF No. 37 at 2. The court instructed the clerk to 28 administratively close the case and made clear that “[n]othing further will take place in this matter 1 unt petitioner exhausts his unexhauste claims in the state cou and, wit til r ed urts thin 28 days thereafter, s 2 mo oves to reope the case and lift the co en a ourt’s stay.” Id. at 3. ” 3 Petition now mov to reopen the case, li the court’s stay and fi a Second Amended ner ves n ift ile 4 Pet tition (SAP) containing all twenty-th claims i the FAP b a hree in because the u unexhausted claims d 5 the erein were ex xhausted wh the Supre Court of California denied his f hen eme final state ha abeas petition n 6 on September 13, 2017. Th motion (E No. 39) is GRANT he ECF ) TED. The co ourt’s stay is lifted, and 7 the clerk is inst e tructed to reopen the cas and file as the operativ SAP in th case the p se s ve his proposed 8 SA submitted by petitione and stamp filed receiv on Octob 13, 2017 AP d er p ved ber 7. 9 Because the court previously fo p ound that the twenty-thre claims in the now ope e ee erative SAP app cogniza under § 2254, respondent shall f with the court and se pear able file erve on petit tioner, 11 United States District Court Northern District of California 10 wit thin 60 days of the issua ance of this order, an ans o swer conform ming in all re espects to Ru 5 of the ule 12 Ru Governin Section 2254 Cases, showing cau why a wr of habeas corpus shou not be ules ng 2 s use rit s uld 13 gra anted. Respo ondent shall file with the answer and serve on pe e d etitioner a co of all po opy ortions of the e 14 state trial recor that have been transcr rd b ribed previou and that are relevan to a determ usly t nt mination of 15 the issues prese e ented by the petition. If petitioner w f wishes to resp pond to the a answer, he s shall do so 16 by filing a traverse with the court and serving it on respondent within 30 d e s n days of his re eceipt of the 17 ans swer. 18 19 20 21 S RED. IT IS SO ORDER Da ated: Novemb 14, 2017 ber 7 ___ __________ ___________ __________ ________ CH HARLES R. BREYER Un nited States D District Judg ge 22 23 24 25 26 27 28 2

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