Cepero v. William et al

Filing 9

ORDER Denying 8 Motion to Stay. Amended Petition due by 1/15/2015. Signed by Judge Jennifer A. Dorsey on 12/16/2014. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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BILLY CEPERO,

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Petitioner,

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vs.

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Case No. 2:14-cv-01397-JAD-PAL

BRIAN WILLIAM, et al.,

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ORDER

Respondents.

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The court directed petitioner to file an amended petition for a writ of habeas corpus because

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in his original petition he presented only bare legal claims without any allegations of fact. Instead

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of filing an amended petition, petitioner has submitted a motion to stay the proceedings. Petitioner

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argues that this is a protective petition that he filed because the timeliness of his current state habeas

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corpus proceedings is in question, which in turn could affect the timeliness of his federal habeas

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corpus petition. That uncertainty can be good cause for the court to stay a petition. See Pace v.

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DiGuglielmo, 544 U.S. 408, 416-17 (2005). Pace assumes that there is something to stay, but

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petitioner has alleged nothing in his original petition. If the court were to stay the action, petitioner

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still would need to file an amended petition to correct that defect. The date of filing of the amended

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petition could relate back to the date of filing of the original petition “[s]o long as the original and

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amended petitions state claims that are tied to a common core of operative facts . . . .” Mayle v.

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Felix, 545 U.S. 644, 664 (2005). In petitioner’s case, there cannot be a common core of operative

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facts because petitioner has not alleged any facts in the original petition. The amended petition will

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need to stand on its own for the purposes of timeliness. If the court granted a stay to petitioner

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under these circumstances and then required him to file an amended petition after lifting the stay, it

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is possible that the amended petition then would be untimely.1 The court will not lay such a trap for

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petitioner. Instead, the court will grant petitioner one more opportunity to file an amended petition

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that corrects the defects noted in the court’s earlier order. The court repeats, because it is important,

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that the effective date of commencement for the one-year period of limitation of 28 U.S.C.

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§ 2244(d)(1) is the date that petitioner mails the amended petition to the court. Petitioner should

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not construe any time to file the amended petition as an extension of the one-year period of

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§ 2244(d)(1).

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IT IS THEREFORE ORDERED that petitioner’s motion to stay proceedings (#8) is
DENIED.
IT IS FURTHER ORDERED that petitioner shall have until January 15, 2015, to file an
amended petition in accordance with the court’s earlier order (#5).
DATED: December 16, 2014.

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_________________________________
JENNIFER A. DORSEY
United States District Judge

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The court makes no comment on whether this action is untimely regardless of how the state
courts rule on the timeliness of his state petition.
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