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Buckner v. Felker

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 24, 2009

BOBBY DEAN BUCKNER, PETITIONER,
v.
T. FELKER, WARDEN, RESPONDENT.

ORDER

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 2006 judgment of conviction entered in the Sacramento County Superior Court. Petitioner has paid the filing fee. Pending before the court is petitioner's renewed motion for a stay and abeyance.

PROCEDURAL HISTORY

Petitioner commenced this action by filing a petition for writ of habeas corpus, together with a motion for a stay and abeyance. In his motion, petitioner explained that he had exhausted all of the claims set forth in his federal petition, except claims three and four. Petitioner expressed his concern about the one-year federal statute of limitations and noted that he was in the process of exhausting state court remedies.

On March 9, 2009, the court issued an order explaining that, based on the information petitioner provided to the court in his petition and motion for a stay and abeyance, it was not clear that a stay and abeyance was appropriate or necessary in this case. In an abundance of caution, however, the court granted petitioner thirty days to file a renewed motion for a stay and abeyance. The court informed petitioner that the renewed motion must (1) show good cause for petitioner's failure to exhaust all claims before filing this action, (2) demonstrate why each of petitioner's unexhausted claims is potentially meritorious, (3) describe the status of any state court proceedings on the unexhausted claims, and (4) demonstrate that petitioner has acted diligently in pursuing his unexhausted claims. Petitioner has since filed a renewed motion for a stay and abeyance.

PETITIONER'S RENEWED MOTION FOR A STAY AND ABEYANCE

In his renewed motion, petitioner explains that in September 2008, he filed a petition for writ of habeas corpus in the Sacramento County Superior Court. On October 3, 2008, the court denied the petition. In January 2009, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal. Petitioner mistakenly believed that the Court of Appeal denied his petition, so in February 2009, he filed a petition for writ of habeas corpus in the California Supreme Court. Petitioner explains that he now believes that his petition for writ of habeas corpus is still pending before the California Court of Appeal. Petitioner further explains that the California Supreme Court will not make any decision on his petition until after the Court of Appeal has ruled in the case before it.

DISCUSSION

Based on the case numbers petitioner has listed in his renewed motion for a stay and abeyance, it appears that petitioner's pursuit of habeas corpus relief in state court is now complete. According the California Court of Appeal's website, the court summarily denied his petition (C060840) on January 22, 2009. According to the California Supreme Court's website, that court denied his petition (S170489) on July 8, 2009.

If this is the case, and petitioner is no longer pursuing habeas corpus relief in state court, this court will direct petitioner to file an amended petition containing all of his exhausted claims in this action. Upon receipt and review of petitioner's amended petition, the court will deny petitioner's renewed motion for a stay and abeyance as moot, allow the case to proceed on petitioner's amended petition, and order respondent to file and serve a response to petitioner's amended petition.

If, on the other hand, petitioner has a petition for writ of habeas corpus still pending in state court, this court will direct petitioner to file a declaration explaining the status of his petition and any pending state habeas corpus proceedings. Upon receipt and review of petitioner's declaration, the court will issue findings and recommendations on petitioner's renewed motion for a stay and abeyance.

CONCLUSION

Accordingly, IT IS HEREBY ORDERED that:

1. Within thirty days of the date of service of this order, petitioner shall either:

(a) file an amended petition containing all of his exhausted claims;*fn1 or

(b) file a declaration explaining the status of any pending habeas corpus proceedings in state court; and

2. The Clerk of the Court is directed to send petitioner the court's form for filing a petition for writ of habeas corpus.


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