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Stacey Wells v. J.W. Haviland

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION


March 23, 2011

STACEY WELLS, PETITIONER,
v.
J.W. HAVILAND, RESPONDENT.

The opinion of the court was delivered by: Marc L. Goldman United States Magistrate Judge

MEMORANDUM AND ORDER DISMISSING MOTION AND/OR PETITION FOR WRIT OF HABEAS CORPUS WITH LEAVE TO AMEND

Petitioner, who is currently incarcerated in the California State Prison at Vacaville, filed a Motion for Stay and Abeyance with an appended state petition for writ of habeas corpus on December 29, 2010. The filing suffers from the following deficiencies: C There is no federal petition for writ of habeas corpus filed with the Court, only a motion to stay proceedings. Without a petition pending which states the claims for relief and the underlying facts, the Court cannot evaluate whether a cognizable petition has been filed or whether a stay of proceedings is warranted.

C The petition fails to provide the Court with the date of filing of each of his direct appeal and/or state petitions for writ of habeas corpus and which claims for relief were presented in each petition.

Based on the above-noted deficiencies, the purported petition and motion are DISMISSED with leave to amend. Petitioner may file a "First Amended Petition" not later than 21 days from the date of this order. To that end, the Clerk is instructed to send to petitioner with this order a copy of the latest version of form Civ 69 -Petition for Writ of Habeas Corpus by a Person in State Custody, pen-changed to reflect "First Amended" Petition. Petitioner is advised that any memorandum in support of the petition is limited to 15 pages. Petitioner is further advised that if he fails to file a First Amended Petition in accordance with the requirements of this order, the action will be subject to dismissal without further notice. The Court will not wait for Petitioner to be released from custody in order to get a clear statement of the claims for relief and the underlying facts.

20110323

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