Walker v. Beard

Filing 20

ORDER Dissolving Stay and Reopening Action. Amendment to 2016 Petition due by 9/9/2022. Signed by Judge Edward M. Chen on 7/28/2022. (emcsec, COURT STAFF) (Filed on 7/28/2022)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THELMEAS WALKER,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 16-cv-01280-EMC
ORDER DISSOLVING STAY AND
REOPENING ACTION

v.
JEFFREY BEARD,
Defendant.

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This federal habeas action (“2016 Petition”) was stayed so that Petitioner could exhaust a

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new claim in state court. Docket No. 18. In 2021, Petitioner filed a new habeas action

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challenging the same convictions he challenges in the instant action. See Walker v. Eaton, No. 21-

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cv-3774 (EMC) (“2021 Petition”).

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Respondent moved to dismiss the 2021 Petition for being, among other things, untimely.

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See 28 U.S.C. § 2244(d). In the interest of justice, the Court dismissed the 2021 Petition and will

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reopen the 2016 Petition. Accordingly, the stay in the instant matter is DISSOLVED and the

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action is REOPENED. The Clerk is directed to modify the docket accordingly.

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On or before September 9, 2022, Petitioner may file an amendment to the 2016 Petition.

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The amended petition should have the case caption and case number for the 2016 Petition on the

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first page (that is, it should state “Walker v. Beard, Case No. 16-cv-1280-EMC”), and also should

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be clearly marked “Amended Petition.”

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The amended petition must be a complete statement of Petitioner’s claims. See Lacey v.

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Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc) (“For claims dismissed with

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prejudice and without leave to amend, we will not require that they be repled in a subsequent

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amended complaint to preserve them for appeal. But for any claims voluntarily dismissed, we will

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consider those claims to be waived if not repled.”). This means that if Petitioner wishes to pursue

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any claim, whether it was raised in the 2016 or 2021 Petitions, or not previously filed in federal

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court, that claim must be included in his amended petition. In other words, any claim not

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included in the amended petition will be deemed waived, and the Court will order briefing only on

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the claims presented. Respondent need not file an answer to the amended petition until it has been

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reviewed by the Court pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section

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2254 Cases.

United States District Court
Northern District of California

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If Petitioner does not file an amended petition by the deadline, the Court will assume that

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Petitioner intends to proceed only on the claims originally raised in the 2016 Petition and to waive

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all other claims, and will set a briefing schedule for Respondent to file an answer to the 2016

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Petition’s claims.

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IT IS SO ORDERED.

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Dated: July 28, 2022

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______________________________________
EDWARD M. CHEN
United States District Judge

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