Curtiss v. Braun

Filing 20

ORDER by Magistrate Judge Charles S. Miller, Jr. denying 8 Motion to Stay; denying 18 Motion to Amend/Correct Petition. (BG) Distributed on 8/29/2016. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Spencer Kerry Curtiss,
Petitioner,
vs.
Colby Braun, Warden, N.D.S.P.,
Respondent.

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ORDER

Case No. 1:16-cv-049

The petitioner, Spencer Kerry Curtis, filed a “Petition Under 28 U.S.C. 2254 for a Writ of
Habeas by a Person in State Custody” with the court on March 11, 2016.
On March 24, 2016, the undersigned issued an order instructing the clerk's office to serve
respondent with the petition and respondent to file an answer within thirty days of service.
Additionally, in the event that defendant intended to assert the untimeliness of the petition as a
defense, the undersigned directed that respondent file an expedited motion for dismissal on such
grounds.1
On April 28, 2016, Curtiss filed a "Request for Stay Pending the Deposition of a Motion."
Although not entirely clear, it appears that Curtiss is seeking a stay of this case pending the final
disposition of Rule 60(b) motion that he is intending to file in state court. His request reads as
follows:
The petitioner, Spencer Kerry Curtiss, does hereby submit this Request for
a stay pending the deposition of a motion in order for district court to rule on issues

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The Antiterrorism and Effective Death Penalty Act (“AEDPA”) provides in relevant part that state
prisoners have one year from the date on which a conviction becomes final to file a petition for writ of habeas
corpus. See 28 U.S. C. § 2244(d)(1)(A). The timeliness of a petition is a threshold issue that a respondent may raise
as a defense. As it could arguably obviate a need to delve into the merits, court deemed it the best use of everyone's
resources resolve any issues regarding the timeliness of the instant petition at the outset of this litigation.

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of verified verbatim transcripts supplied in court filings. It would be premature and
unfair for court to determine whether or not the record would support an affirmation
or a reversal of a case without district court's determination based upon a valid
decisional process.
Petition requests this stay in order to file a motion for relief Rule 60(b) to
correct a mistake inadvertence, or excusable neglect and any other reason justifying
relief to properly correct the record of appeal.
(Docket No. 8)
On May 31, 2016, respondent filed a motion to dismiss Curtiss' petition on the grounds that
it is time-barred, that Curtiss failed to properly exhaust all of his remedies in state court prior to
petitioning this court for habeas relief, and that his petition is otherwise without merit.
Curtiss filed a response in opposition to respondent's motion to dismiss on June 15, 2016,
contesting respondent's assertions and further averring that the state court record has been altered.
That same day he filed a "Request for Leave of Court and Order to Amend Section 2254 Petition."
The court is not inclined to grant Curtiss a stay or leave to amend his petition. Curtiss has
had ample to time address whatever issues he has with the state court record. A stay will
unnecessarily protract matter and unduly delay final disposition of this matter. As for Curtiss' latter
request, Curtiss does not specify how he intends to amend his petition.
Accordingly, Curtiss' "Request for Stay Pending the Deposition of a Motion" (Docket No.
8) and "Request for Leave of Court and Order to Amend Section 2254 Petition" (Docket No. 18 )
are DENIED.
IT IS SO ORDERED.
Dated this 29th day of August, 2016.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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