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Noel Rodriguez v. Timothy Busby

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


April 3, 2012

NOEL RODRIGUEZ, PETITIONER,
v.
TIMOTHY BUSBY, RESPONDENT.

The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER

Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Petitioner filed the original petition on August 18, 2011, as well as a motion for stay and abeyance, and a request to proceed in forma pauperis. (Dkt. Nos. 1, 2, and 3.) On November 4, 2011, this court issued an order granting the petitioner's request to proceed in forma pauperis, denying the motion for stay without prejudice, and giving the petitioner thirty days to notify the court whether he wished to persist in his request to stay to allow him to exhaust Claims 4 and 5 of the original petition in the state courts, or whether he wished to file an amended petition omitting the claims which had not yet been exhausted. (Dkt. No. 8.)

On November 21, 2011, petitioner filed a renewed motion to stay the case pending exhaustion of claims 4 and 5. (Dkt. No. 9.) He also filed an Amended Petition asserting Claims 1-3. (Dkt. No. 10.)

On February 7, 2012, petitioner filed a motion stating that he had recently exhausted Claims 4 and 5. (Dkt. No. 13.) He also filed a Second Amended Petition asserting Claims 4-5. (Dkt. 12.) Petitioner seeks to "consolidate" these petitions such that the final petition contains all five allegedly exhausted claims.

Rather than "consolidate" two separate pleadings into a single petition, the court will grant petitioner 30 days' leave to file a third amended petition containing all five claims.*fn1

Because petitioner's pending motion to stay the action while he exhausts Claims 4 and 5 is now moot, the court will deny it as such.

In accordance with the above, IT IS HEREBY ORDERED that: 1. Petitioner's November 21, 2011 renewed motion to stay (Dkt. No. 9) is denied as moot;

2. Petitioner's February 7, 2012 motion for consolidation (Dkt. No. 13) is denied;

3. Petitioner's February 7, 2012 motion to proceed in forma pauperis (Dkt. No. 14) is denied as moot; and

4. Petitioner is granted thirty days from service of this order to file a Third Amended Petition.


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