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Buckner v. Felker

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


September 30, 2009

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

ORDER

Petitioner is a state prisoner proceeding pro se. Pending before the court is petitioner's amended petition for writ of habeas corpus.

BACKGROUND

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 explains that he has 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.

On April 3, 2009, petitioner filed a renewed motion for a stay and abeyance. After reviewing petitioner's motion, the court observed that petitioner's pursuit of habeas corpus relief in state court appeared complete. Specifically, 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 was the case, and petitioner was no longer pursuing habeas corpus relief in state court, the court directed petitioner to file an amended petition containing all of his exhausted claims in this action. Petitioner has since filed an amended petition.

Good cause appearing, the court will deny petitioner's renewed motion for a stay and abeyance as moot and allow the case to proceed on petitioner's amended petition and in accordance with this order.

CONCLUSION

In accordance with the above, IT IS HEREBY ORDERED that:

1. Petitioner's April 3, 2009 renewed motion for a stay and abeyance (Doc. No. 8) is denied as moot;

2. Respondent is directed to file a response to petitioner's September 18, 2009 amended petition within sixty days from the date of this order. See Rule 4, Fed. R. Governing § 2254 Cases. An answer shall be accompanied by any and all transcripts or other documents relevant to the determination of the issues presented in the application. See Rule 5, Fed. R. Governing § 2254 Cases;

3. Petitioner's reply, if any, shall be filed and served within thirty days of service of an answer;

4. If the response to petitioner's application is a motion, petitioner's opposition or statement of non-opposition shall be filed and served within thirty days of service of the motion, and respondents' reply, if any, shall be filed within fifteen days thereafter;

5. The Clerk of the Court shall serve a copy of this order, a copy of the September 18, 2009 amended petition, and a copy of the form regarding consent or request for reassignment on Michael Patrick Farrell, Senior Assistant Attorney General.

20090930

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