Bell v. Horel

Filing 16

ORDER LIFTING STAY AND DIRECTING RESPONDENT TO SHOW CAUSE WHY THE WRIT SHOULD NOT BE GRANTED. Case reopened.. Signed by Judge Claudia Wilken on 6/30/09. (scc, COURT STAFF) (Filed on 6/30/2009)

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1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. TOMMY BELL, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA No. C 08-01493 CW (PR) ORDER LIFTING STAY AND DIRECTING RESPONDENT TO SHOW CAUSE WHY THE WRIT SHOULD NOT BE GRANTED / Petitioner, BOB HOREL, Warden, Respondent. Petitioner, a state prisoner, has filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. On August 21, 2008, the Court ordered Respondent to show cause why the petition should not be granted, or to file a dispositive motion if appropriate. On January 6, 2009, Respondent filed a Petitioner motion to dismiss the petition as not fully exhausted. filed a request for a stay of proceedings while he returned to state court to exhaust his administrative remedies.1 On January 28, 2009, the Court denied Respondent's motion to dismiss and granted Petitioner's request for a stay. On June 10, 2009, Petitioner informed the Court that his state proceedings had concluded, and he filed his first amended habeas petition containing his exhausted claims. He notes that the California Supreme Court denied his state habeas petition on May 13, 2009. Before the Court is Petitioner's implied motion for leave to file his first amended petition. Petitioner's motion to stay was filed as part of the appendix to his petition. (Pet. at 27.) 1 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Good cause appearing, the Court lifts the stay and GRANTS Petitioner leave to file his first amended petition. The Clerk of the Court is directed to mark Petitioner's first amended petition as filed on June 10, 2009, the date it was received. The Clerk of the Court shall REOPEN this case and serve a copy of this Order and the first amended petition and all attachments thereto upon Respondent and Respondent's attorney, the Attorney General of the State of California. The Clerk shall also serve a copy of this Order on Petitioner at his most current address. Respondent shall file with this Court and serve upon Petitioner, within sixty (60) days of the issuance of this Order, an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued. Respondent shall file with the answer a copy of all portions of the state trial record that have been transcribed previously and that are relevant to a determination of the issues presented by the petition. 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 his receipt of the answer. Otherwise, the petition will be deemed submitted and ready for decision thirty days after the date Petitioner is served with Respondent's answer. Petitioner is reminded that all communications with the Court, whether by way of formal legal motions or informal letters, must be served on Respondent by mailing a true copy of the document to Respondent's counsel. 2 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Extensions of time are not favored, though reasonable extensions will be granted. Any motion for an extension of time must be filed no later than seven (7) days prior to the deadline sought to be extended. IT IS SO ORDERED. Dated: 6/30/09 CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE 3 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TOMMY BELL, Plaintiff, v. BOB HOREL et al, Defendant. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Case Number: CV08-01493 CW CERTIFICATE OF SERVICE / 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 June 30, 2009, 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. Michele Joette Swanson CA State Attorney General's Office 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Tommy Bell V-09957 3A05-141 Corcoran State Prison P.O. Box 3461 Corcoran, CA 93212 Warden Corcoran State Prison P.O. Box 8800 Corcoran, CA 93212 Dated: June 30, 2009 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk 4

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