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Eddie J. Adair v. To Stay Matthew Cate

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


January 21, 2011

EDDIE J. ADAIR, PETITIONER,
v.
TO STAY MATTHEW CATE, SECRETARY OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, RESPONDENT.

The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. Magistrate Judge United States District Court

Order Denying Motion [Doc. No. 26]

Petitioner, Eddie J. Adair, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 with this Court on January 20, 2010, presenting four claims. In an Order [Doc. No. 3] dated January 27, 2010, the Court, having preliminarily determined that the Petition contained unexhausted claims, notified the Petitioner that he had not alleged exhaustion as to claims three and four*fn1 and presented the Petitioner with four options regarding his mixed petition. The Petition was dismissed without prejudice and with leave to amend on January 27, 2010, for failure to name a proper respondent.

On February 10, 2010, the Petitioner filed a Motion to Change Respondent [Doc. No. 7] and a Motion for Stay and Abeyance. [Doc. No. 5.] On February 24, 2010, the Court issued an Order Sua Sponte Substituting Matthew Cate, Secretary of the California Department of Corrections and Rehabili-tation, in place of Debra Dexter to avoid changing the Respondent again if Petitioner is transferred to another prison or paroled. [Doc. No. 9.] Petitioner's Motion for Stay and Abeyance [Doc. No. 5] was denied in a Report and Recommendation [Doc. No. 15] issued on June 16, 2010 and adopted on July 13, 2010 [Doc. No. 16].

The Petitioner filed a First Amended Petition (hereinafter "FAP") [Doc. No. 20] on August 11, 2010. The parties consented to Magistrate Judge Jurisdiction on October 14, 2010 [Doc. No. 23]. Respondents filed an Answer to the FAP [Doc. No. 24] on October 25, 2010. The Petitioner's Traverse was due on November 24, 2010, however, instead of filing a Traverse, the Petitioner instead filed another Motion for Stay and Abeyance on November 21, 2010, which is again a one sentence request that fails to demonstrate good cause. For the same reasons set forth in this Court's Orders of June 16, 2010 [Doc. No. 15]*fn2 and July 13, 2010 [Doc. No. 16], Petitioner's Motion for Stay and Abeyance [Doc. No. 26] is hereby DENIED.

Petitioner is hereby ORDERED to file his Traverse on or before March 1, 2011. The Petitioner is warned that no further extensions of time will be granted absent good cause and that failure to timely file his Traverse or file a request for an extension of time demonstrating good cause, will result in this Court issuing a ruling based on the First Amended Petition, Lodgments and Answer.

IT IS SO ORDERED.

K:\COMMON\BATTAGLI\HABEAS\Adair\10cv166.R&R.re.2nd.mot2stay.wpd 2 10cv166


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