IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 28, 2012
DAVID D. JONES, PETITIONER,
CONNIE GIPSON, RESPONDENT.
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On February 2, 2012, the undersigned ordered respondent to file a response to the pending petition within sixty days. On March 6, 2012, counsel for respondent filed a motion to consolidate this action with Case No. CIV S-09-3022 LKK JFM. Therein, counsel explains that on October 4, 2010, Magistrate Judge John F. Moulds recommended that petitioner's request for a stay and abeyance in Case No. CIV S-09-3022 LKK JFM be granted. United States District Judge Lawrence K. Karlton adopted that recommendation and stayed the case while petitioner filed a petition for writ of habeas corpus with the California Supreme Court. However, after the California Supreme Court denied petitioner's exhaustion petition, petitioner did not file a motion to lift the stay in Case No. CIV S-09-3022 LKK JFM. Instead, he filed this new action.
After reviewing court records, it is clear that counsel for respondent is correct and that this action was opened in error. Accordingly, the undersigned will grant respondent's motion and direct the Clerk of the Court to re-file petitioner's pending petition, together with a copy of this order, in Case No. CIV S-09-3022 LKK JFM. Magistrate Judge Moulds may then decide how to proceed with the petition in that action.
Accordingly, IT IS HEREBY ORDERED that:
1. Respondent's motion to consolidate (Doc. No. 18) is granted;
2. The Clerk of the Court is directed to re-file petitioner's pending petition (Doc. No. 1), together with a copy of this order, in Case No. CIV S-09-3022 LKK JFM; and
3. This action is closed.
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