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Yang v. Sisto

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


May 18, 2010

TENG YANG, PETITIONER,
v.
D. K. SISTO, RESPONDENT.
TENG YANG, PETITIONER,
v.
CHARLES DEROSA, RESPONDENT.

ORDER

Petitioner is a California prisoner proceeding pro se with an application for writ of habeas corpus under 28 U.S.C. § 2254 in each of the above-titled actions. On December 21, 2009, petitioner filed a motion in CIV S-08-2233 KJM P requesting a stay so that he can exhaust state court remedies with respect to five claims. Petitioner already presented a motion to stay in CIV S-09-2578 KJM P (see docket entry #3) and the motion was denied on March 18, 2010.

Although the motion filed in this case is signed by petitioner, the substance of the motion is the same; the court has no cause to reconsider the March 18, 2010 order entered in CIV S-09-2578 KJM P. Therefore, petitioner's motion for a stay in CIV S-08-2233 KJM P will be denied.

On May 7, 2010 in CIV S-09-2578 KJM P, the court ordered respondent to file a response within sixty days to petitioner's April 12, 2010 amended petition for writ of habeas corpus. The April 12, 2010 amended petition filed in CIV S-09-2578 KJM P is essentially the same as the amended petition filed December 21, 2009 in CIV S-08-2233 KJM P, except that the five unexhausted claims mentioned above are included in the December 21, 2009 petition. The court has not yet ordered respondent to respond to the December 21, 2009 petition.

Good cause appearing, CIV S-09-2578 KJM P will be closed and petitioner will proceed in CIV S-08-2233 KJM P. The order directing respondent to file a response to the April 12, 2010 amended petition in CIV S-09-2578 KJM P will be vacated and respondent will be directed to file a response to the December 21, 2009 amended petition filed in CIV S-08-2233 KJM P. Respondent need only respond to claims one through five.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's motion for a stay in CIV S-08-2233 KJM P (#51) is denied.

2. The May 7, 2010 order in CIV S-09-2578 KJM P directing respondent to file a response to petitioner's April 12, 2010 amended application for writ of habeas corpus is vacated.

3. Case CIV S-09-2578 KJM P is closed. 4. Respondent is directed to file a response to the December 21, 2009 amended petition for writ of habeas corpus filed in CIV S-08-2233 KJM P within sixty days from the date of this order. See Rule 4, Fed. R. Governing § 2254 Cases. An answer shall be accompanied by all transcripts and other documents relevant to the issues presented in the petition. See Rule 5, Fed. R. Governing § 2254 Cases. Respondent need only respond to claims one through five in the amended petition.

5. If the response to the amended petition is an answer, petitioner's reply, if any, shall be filed and served within thirty days after service of the answer.

6. If the response to the habeas petition is a motion, petitioner's opposition or statement of non-opposition to the motion shall be filed and served within thirty days after service of the motion, and respondent's reply, if any, shall be filed and served within fourteen days thereafter.

7. The Clerk of the Court shall serve a copy of this order, the consent/reassignment form contemplated by Appendix A(k) to the Local Rules of this court, and a copy of the amended petition for writ of habeas corpus filed in CIV S-08-2233 KJM P on December 21, 2009 on Michael Patrick Farrell, Senior Assistant Attorney General.

20100518

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