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Rivera v. Hartley

July 20, 2010

FRANK RIVERA, PETITIONER,
v.
JAMES D. HARTLEY, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DENYING PETITIONER'S MOTION FOR A STAY

(Doc. 31)

ORDER CONSTRUING THE SECOND PETITION

(Doc. 13)

TO BE A SEPARATE PETITION AND DIRECTING THE CLERK TO FILE IT IN A NEW ACTION

ORDER DIRECTING THE SUBSTITUTION OF WARDEN JAMES D. HARTLEY AS RESPONDENT

(Docs. 26, 28)

ORDER VACATING PRIOR ORDER AND DIRECTIONS TO RESPONDENT TO RESPOND

(Docs. 10, 12)

ORDER REQUIRING RESPONDENT TO FILE A RESPONSE TO THE PETITION

(Doc. 1)

ORDER SETTING A BRIEFING SCHEDULE ORDER DIRECTING THE CLERK TO SERVE DOCUMENTS ON THE ATTORNEY GENERAL

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 that was transferred to this Court from the United States District Court for the Central District of California. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court are the petition and Petitioner's motion for a stay filed on March 17, 2010.

I. Motion for a Stay

Petitioner's initial petition, challenging the denial of parole by the California Board of Parole Hearings (BPH) on March 1, 2006, was filed in the United States District Court for the Central District of California. (Doc. 1, pet. in no. 09-cv-4873-ABC-AN, 7-8, 18.) Petitioner then filed in that district a second petition challenging the BPH's later denial of his parole on March 25, 2008. (Doc. 13, 9, 10, 32.) When the second petition was construed by the Central District to be an amended petition in the first action, Petitioner first objected and then filed a notice of appeal on January 29, 2010. (Docs. 17, 14.)

Judicial notice may be taken of court records. Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D.Cal.1978), aff'd , 645 F.2d 699 (9th Cir. 1981); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989); Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th. Cir. 1980). The Court takes judicial notice of the docket of the United States Court of Appeals for the Ninth Circuit in Rivera v. Mendoza-Powers, case no. 10-55336, which reflects that on April 15, 2010, the court dismissed Petitioner's appeal from the Central District's order in Central District case no. 2:09-cv-04873-ABC-AN for lack of jurisdiction because the orders challenged in the appeal were not final or appealable. The ...


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