Schmitt v. Obenland

Filing 45

ORDER Lifting Stay and Granting Motion to Amend Petition. The Court GRANTS the Motion to amend the petition for writ of habeas corpus (Dkt. 42 ). The Motion to stay (Dkt. 41 ) is DENIED as moot. Within forty-five (45) days, Respondent shall file and serve an answer in accordance with Rule 5 of the Rules Governing Section 2254 Cases in United States District Courts. Signed by Magistrate Judge Grady J Leupold.**3 PAGE(S), PRINT ALL**(Jacob Schmitt, Prisoner ID: 711473)(MW)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JACOB IVAN SCHMITT,
v.

Petitioner,

CASE NO. 3:18-cv-05602-BHS-GJL
ORDER LIFTING STAY AND
GRANTING MOTION TO AMEND
PETITION

ERIC JACKSON,
Respondent.

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This matter is before the Court on referral from the District Court and on both

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Respondent’s Motion to continue the stay, Dkt. 41, and Petitioner’s Motion to amend his habeas

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petition, Dkt. 42.

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Petitioner Jacob Ivan Schmitt, proceeding pro se, filed a Petition pursuant to 28 U.S.C.

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§ 2254 in July 2018. Dkt. 1. In September 2018, Respondent filed a motion requesting the Court

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stay the Petition so that Petitioner could exhaust his state court remedies. Dkt. 10. The Court

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granted the Motion and has subsequently granted multiple motions to stay this matter on the

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basis that Petitioner is exhausting his state court remedies. See Dkts. 12, 14, 16, 18, 20, 24, 25,

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29, 31, 33, 35.

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ORDER LIFTING STAY AND GRANTING
MOTION TO AMEND PETITION - 1

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On May 2, 2023, Respondent filed another Motion to continue the stay indicating that

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Petitioner’s state court proceedings remain pending in the Washington State Courts. Dkt. 41.

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However, on May 9, 2023, Petitioner filed a Motion to amend his federal habeas petition,

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informing the Court that he is voluntarily withdrawing an unexhausted ground for relief from his

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original Petition. Dkt. 42. Petitioner has attached a proposed amended petition to that Motion.

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See Dkt. 42-1. In addition, Petitioner responded to the Motion to continue the stay requesting that

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the stay be lifted. Dkt. 43. Respondent has responded, indicating he does not oppose Petitioner’s

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Motion to amend or his request to lift the stay. Dkt. 44.

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Upon review of the Motions, the proposed amended Petition, and other relevant records

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in this case, the Court GRANTS the Motion to amend the petition for writ of habeas corpus

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(Dkt. 42). The Motion to stay (Dkt. 41) is DENIED as moot. Therefore, the Court further

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ORDERS:

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1)

The amended petition for writ of habeas corpus (Dkt. 42-1) is accepted for filing.

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The Clerk shall docket the Amended Petition (Dkt. 42-1) as an Amended Petition for Writ of

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Habeas Corpus.

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2)

Within forty-five (45) days, Respondent shall file and serve an answer in

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accordance with Rule 5 of the Rules Governing Section 2254 Cases in United States District

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Courts. As part of such answer, Respondent shall state whether Petitioner has exhausted

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available state remedies and whether an evidentiary hearing is necessary. Respondent shall not

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file a dispositive motion in place of an answer without first showing cause as to why an answer is

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inadequate. Respondent shall file the answer with the Clerk of the Court and serve a copy of the

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answer on Petitioner.

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ORDER LIFTING STAY AND GRANTING
MOTION TO AMEND PETITION - 2

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3)

The answer will be treated in accordance with LCR 7. Accordingly, on the face of

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the answer, Respondent shall note it for consideration on the fourth Friday after filing. Petitioner

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may file and serve a response not later than the Monday immediately preceding the Friday

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designated for consideration of the matter, and Respondent may file and serve a reply not later

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than the Friday designated for consideration of the matter.

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Dated this 19th day of May, 2023.

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A

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Grady J. Leupold
United States Magistrate Judge

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ORDER LIFTING STAY AND GRANTING
MOTION TO AMEND PETITION - 3