Greer v. Montgomery

Filing 17

ORDER LIFTING STAY; REOPENING ACTION; AND SETTING NEW BRIEFING SCHEDULE. Signed by Judge Saundra Brown Armstrong on 5/30/2014. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 6/3/2014)

1

UNITED STATES DISTRICT COURT
2

NORTHERN DISTRICT OF CALIFORNIA
3
4

LEE JOHN GREER,

No. C 10-2380 SBA (PR)

5

Petitioner,

ORDER LIFTING STAY;
REOPENING ACTION; AND
SETTING NEW BRIEFING
SCHEDULE

6
7
8
9

v.
W. L. MONTGOMERY, Acting Warden,
Respondent.

/

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

On May 28, 2010, Petitioner Lee John Greer filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in the Contra Costa County
Superior Court. Dkt. 1. On the same date, Petitioner moved for a stay of these proceedings
on the ground that his state court habeas proceedings were still pending. Dkt. 3.
On June 25, 2010, the Court granted Petitioner's request for a stay while he continued
to exhaust his administrative remedies, as to the claims he did not raise on direct review, and
the case was administratively closed. Dkt. 4. In its Order, the Court required Petitioner to
file quarterly reports describing the progress of his state court habeas proceedings until those
proceedings were concluded.
In accordance with the Court's Order, Petitioner filed status reports indicating that the
state courts had not ruled on his state habeas petition. Dkts. 5, 6. On September 16, 2011,
Petitioner filed a letter requesting that this Court lift the stay and order briefing on his federal
habeas petition. Dkt. 7. On October 25, 2011, the Court issued an Order Directing Petitioner
to File an Amended Petition. Dkt. 8. In that Order, the Court noted that Petitioner's letter
requesting that the stay be lifted did not indicate that his state court habeas proceedings had
concluded. The Court directed Petitioner to file an amended petition incorporating the
newly-exhausted claims and specifically indicating whether his state court habeas
proceedings had concluded.
Petitioner filed a timely amended petition. Dkt. 9. However, he did not indicate

1

whether his state court habeas proceedings had concluded. The Court notes that Petitioner

2

attached the habeas denial issued by the Contra Costa County Superior Court; however, he

3

failed to indicate whether he presented his unexhausted claims to the California Supreme

4

Court.

5

Petitioner has failed to properly respond to the Court's request to file a notice about
the status of his state court habeas proceedings. At the same time, it is apparent from

7

Petitioner's letter (dkt. 7) that he desires to proceed with his federal petition, including his

8

original exhausted claims. Because the stay was granted at Petitioner's request, the Court

9

finds there is no prejudice to Respondent in lifting the stay. Therefore, the Court GRANTS

10
United States District Court
For the Northern District of California

6

Petitioner's request to lift the stay and reopen the case. Petitioner may now proceed with the

11

amended petition (dkt. 9), which is the operative pleading in this action.

12

Good cause appearing, the Court hereby issues the following orders:

13

1.

The stay is lifted and the Clerk of the Court shall reopen the action.

14

2.

The Clerk is directed to mark Petitioner's amended petition as his “Amended

15
16

Petition,” file-stamped with the date it was received.
3.

The Clerk shall serve a copy of this Order and the amended petition and all

17

attachments thereto (dkt. 9.) upon Respondent and Respondent's attorney, the Attorney

18

General of the State of California. The Clerk shall also serve a copy of this Order on

19

Petitioner at his current address.

20

4.

Respondent shall file with this Court and serve upon Petitioner, within twenty-

21

eight (28) days of the issuance of this Order, an Answer conforming in all respects to Rule 5

22

of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus

23

should not be issued. Respondent shall file with the Answer a copy of all portions of the

24

relevant state records that have been transcribed previously and that are relevant to a

25

determination of the issues presented by the amended petition.

26
27

5.

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 twenty-eight (28) days of his

28
2

1

receipt of the Answer. Should Petitioner fail to do so, the amended petition will be deemed

2

submitted and ready for decision twenty-eight (28) days after the date Petitioner is served

3

with Respondent's Answer.

4

6.

Respondent may file with this Court and serve upon Petitioner, within twenty-

eight (28) days of the issuance of this Order, a motion to dismiss on procedural grounds in

6

lieu of an Answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules

7

Governing Section 2254 Cases. If Respondent files such a motion, Petitioner shall file with

8

the Court and serve on Respondent an opposition or statement of non-opposition to the

9

motion within twenty-eight (28) days of receipt of the motion, and Respondent shall file

10
United States District Court
For the Northern District of California

5

with the Court and serve on Petitioner a reply within fourteen (14) days of receipt of any

11

opposition.

12

7.

It is Petitioner's responsibility to prosecute this case. Petitioner must keep the

13

Court and Respondent informed of any change of address and must comply with the Court's

14

orders in a timely fashion. Petitioner must also serve on Respondent's counsel all

15

communications with the Court by mailing a true copy of the document to Respondent's

16

counsel.

17

8.

Extensions of time are not favored, though reasonable extensions will be

18

granted. Any motion for an extension of time must be filed no later than fourteen (14) days

19

prior to the deadline sought to be extended.

20

9.

W. L. Montgomery, the current acting warden of the prison where Petitioner is

21

incarcerated, has been substituted as Respondent pursuant to Rule 25(d) of the Federal Rules

22

of Civil Procedure.

23

IT IS SO ORDERED.

24
25

DATED:

5/30/2014

SAUNDRA BROWN ARMSTRONG
United States District Judge

26
27
28
P:\PRO-SE\SBA\HC.10\Greer2380.LiftStay-rev.wpd

3