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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THOMAS L. DUDNEY, AH-4570,
Petitioner,

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v.

United States District Court
Northern District of California

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J. MACOMBER, Warden,

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Respondent.

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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

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Amended Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 (FAP) for failure to

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exhaust state judicial remedies as to portions of six of twenty-three claims due to his not fairly

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presenting them to the Supreme Court of California. And pursuant to the law of the circuit, the

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court gave petitioner the option of either withdrawing his unexhausted claims and proceeding only

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on his exhausted claims, or of dismissing the entire mixed petition and returning to federal court

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with a new petition once all claims are exhausted. ECF No. 31 at 7 (citing Jefferson v. Budge, 419

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F.3d 1013, 1016 (9th Cir. 2005); Olvera v. Giurbino, 371 F.3d 569, 573 (9th Cir. 2004)). The

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court also noted that petitioner may be able to obtain a stay if he can show that there was good

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cause for his failure to exhaust the unexhausted claims in state court, and that the claims are

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potentially meritorious. Id. at 7 n.1 (citing Rhines v. Webber, 544 U.S. 269, 277 (2005)).

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Petitioner moved for reconsideration or, in the alternative, a stay under Rhines so he can properly

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exhaust the unexhausted claims.

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On May 31, 2017, the court denied petitioner’s motion for reconsideration, but granted his

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motion for a stay under Rhines. ECF No. 37 at 2. The court instructed the clerk to

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administratively close the case and made clear that “[n]othing further will take place in this matter

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unt petitioner exhausts his unexhauste claims in the state cou and, wit
til
r
ed
urts
thin 28 days thereafter,
s

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mo
oves to reope the case and lift the co
en
a
ourt’s stay.” Id. at 3.
”

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Petition now mov to reopen the case, li the court’s stay and fi a Second Amended
ner
ves
n
ift
ile

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Pet
tition (SAP) containing all twenty-th claims i the FAP b
a
hree
in
because the u
unexhausted claims
d

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the
erein were ex
xhausted wh the Supre Court of California denied his f
hen
eme
final state ha
abeas petition
n

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on September 13, 2017. Th motion (E No. 39) is GRANT
he
ECF
)
TED. The co
ourt’s stay is lifted, and

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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

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SA submitted by petitione and stamp filed receiv on Octob 13, 2017
AP
d
er
p
ved
ber
7.

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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,

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United States District Court
Northern District of California

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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

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Ru Governin Section 2254 Cases, showing cau why a wr of habeas corpus shou not be
ules
ng
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s
use
rit
s
uld

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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

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state trial recor that have been transcr
rd
b
ribed previou and that are relevan to a determ
usly
t
nt
mination of

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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

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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

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ans
swer.

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S
RED.
IT IS SO ORDER
Da
ated: Novemb 14, 2017
ber
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___
__________
___________
__________
________
CH
HARLES R. BREYER
Un
nited States D
District Judg
ge

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