Everett v. McDonald

Filing 31

ORDER LIFTING STAY AND REOPENING CASE; DIRECTING PETITIONER TO FILE AMENDED PETITION AND RESPONDENT TO SHOW CAUSE WHY PETITION SHOULD NOT BE GRANTED. Signed by Judge Claudia Wilken on 3/8/2013. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 3/8/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. C 10-4323 CW (PR)

JAMAL EVERETT,
Petitioner,
v.

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M.D. McDONALD, Warden,
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Respondent.
_______________________________/

ORDER LIFTING STAY AND
REOPENING CASE;
DIRECTING PETITIONER TO
FILE AMENDED PETITION
AND RESPONDENT TO SHOW
CAUSE WHY PETITION
SHOULD NOT BE GRANTED

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Petitioner, a state prisoner proceeding pro se, filed this
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United States District Court
For the Northern District of California

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
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The Court granted Respondent’s motion to dismiss the petition as a
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mixed petition containing both exhausted and unexhausted claims.
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Thereafter, the Court granted Petitioner’s request to stay the
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petition pending his return to state court to exhaust the
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unexhausted claims.
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Petitioner has now filed a motion to lift the stay, reopen
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the case and file an amended petition containing only exhausted
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claims.
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Good cause appearing, the Court orders as follows:
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1.

Petitioner’s motion to lift the stay and reopen the case

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is GRANTED.
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2.

No later than thirty days from the date of this Order,

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Petitioner shall file with the Court and serve upon Respondent’s
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counsel an amended petition that includes all claims that he seeks
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to pursue in this proceeding.

Petitioner must use the habeas form

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provided by the Court and include on the front page thereof the
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caption and case number of this action and the words “Amended
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Petition.”

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3.

No later than sixty days from receipt of the amended

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petition Respondent shall file with this Court and serve upon

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Petitioner an Answer conforming in all respects to Rule 5 of the

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

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habeas corpus should not be issued.

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the Answer all portions of the state record that have been

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transcribed previously and are relevant to a determination of the

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issues presented by the petition.

United States District Court
For the Northern District of California

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Respondent shall file with

If Petitioner wishes to respond to the Answer, he shall do so

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by filing a Traverse with the Court and serving it upon

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Respondent’s counsel no later than thirty days from his receipt of

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the Answer.

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submitted and ready for decision on the date the Traverse is due.

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4.

If he does not do so, the petition will be deemed

No later than sixty days from receipt of the amended

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petition Respondent may file with this Court and serve upon

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Petitioner a motion to dismiss on procedural grounds in lieu of an

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

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the Rules Governing Section 2254 Cases.

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If Respondent files such a motion, Petitioner shall file with

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the Court and serve upon Respondent’s counsel an opposition or

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statement of non-opposition to the motion no later than twenty-

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eight days from his receipt of the motion, and Respondent shall

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file with the Court and serve on Petitioner a reply no later than

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fourteen days from receipt of an opposition.

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5.

It is Petitioner’s responsibility to prosecute this

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case.

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change of address and comply with the Court’s orders in a timely
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He must keep the Court and Respondent informed of any

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fashion.

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communications with the Court by mailing a true copy of the

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document to Respondent’s counsel.

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6.

He also must serve on Respondent’s counsel all

Extensions of time are not favored, though reasonable

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extensions will be granted.

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must be filed no later than ten days prior to the deadline sought

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to be extended.

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United States District Court
For the Northern District of California

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7.

Any motion for an extension of time

The Clerk of the Court shall provide Petitioner with the

Court’s habeas petition form and shall serve a copy of this Order
upon Petitioner and Respondent’s counsel.
IT IS SO ORDERED.
Dated: 3/8/2013
CLAUDIA WILKEN
United States District Judge

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