IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
June 15, 2011
ROBERT HAYDEN NESBITT, JR., PETITIONER,
FRANCISCO JACQUEZ, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
On January 28, 2011, the undersigned set the briefing schedule and denied petitioner's motion for discovery and denied petitioner leave to amend his petition to add a claim of ineffective assistance of counsel. On February 8, 2011, petitioner filed a request for reconsideration to the district judge of the two rulings; by Order, filed on March 16, 2011, the Jan. 28, 2011, Order was affirmed. By Order, filed on May 10, 2011,*fn1 petitioner's motion for the court to certify the March 16, 2011 Order for interlocutory review was denied as well as was "petitioner's motion for a stay pending state court exhaustion of an ineffective assistance of counsel claim," noting that leave to proceed upon such a claim had been previously denied.
Nevertheless, petitioner filed a motion stay pending exhaustion of an ineffective assistance of counsel claim, on May 23, 2011. Docket # 45. Although not properly noticed for hearing in the court docket, the motion indicates a July 21, 2011, hearing date. Id. Within the motion, petitioner recognizes that the court has denied such a stay but states that the motion is being filed to complete the record, present all arguments and preserve the matter for appeal. Petitioner avers that there was no motion to stay before the court when the denial was issued and speculates that the denial was based on petitioner's argument in favor of the discovery then sought, which was denied. However, petitioner recognizes that any request for a stay (implicit or explicit) has been denied.
Respondent has now filed an opposition, presumably to preserve respondent's arguments for the purpose of appeal. It may be that petitioner will be filing a reply. In any case, however, this order is issued for the purpose of clarification.
Accordingly, IT IS ORDERED that:
1. Petitioner's request for a stay pending state court exhaustion of a claim of ineffective assistance of counsel, filed docket # 45, has been previously addressed and adjudicated, see docket entries # 34, # 39, # 41, and # 43; and
2. The hearing date for the motion for a stay, purportedly noticed for hearing before the undersigned on July 21, 2011, is hereby VACATED.