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Mark Swagerty v. Matthew Cate

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


January 23, 2013

MARK SWAGERTY, PETITIONER,
v.
MATTHEW CATE, RESPONDENT.

ORDER

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On February 21, 2012, the undersigned directed respondent to file a response to the petition within 60 days. Dckt. No. 9. On May 15, 2012, after receiving an extension of time, respondent filed an answer to the petition. Dckt. No. 16. In the answer, respondent argues that seven of petitioner's eight claims are unexhausted, and that, in any event, all of petitioner's claims are without merit. Id. at 2-3.

Petitioner subsequently filed a one-page document entitled "Stay and Abeyance." Dckt. No. 19. In this document petitioner states, "That as soon as this matter may be heard, . . . [petitioner] will move for an agreement as to attorney general answer for habeas corpus that number, I, II, IV, V, VI, VII, VIII, be dismissed, to amend the habeas corpus with all exhausted claims, and to amend number II." Id. Respondent filed an opposition to this pleading, arguing that petitioner has not established good cause for his failure to exhaust his claims in state court. Dckt. No. 20 at 2.

On June 15, 2012, petitioner filed a first amended petitioner for writ of habeas corpus. Dckt. No. 21. On December 10, 2012, petitioner filed a document entitled "Answer to Opposition for Stay and Abeyance." Dckt. No. 22. In this pleading petitioner explains that he mistakenly filed his various unexhausted claims due to his lack of knowledge of the exhaustion requirement, but that he has corrected this error by substituting exhausted claims. Id.

Although petitioner titled his pleading "Stay and Abeyance," it is clear from his subsequent pleadings that he does not actually seek a stay of this proceedings. Rather, petitioner wishes to amend his petition to include only those claims that he presented to the California Supreme Court in his petition for review. See generally Dckt. No. 21. Accordingly, the court construes petitioner's first amended petition as a request to file an amended petition. See Fed. R. Civ. P. 15(a). However, because it is unclear whether respondent objects to such amendment, the court will provide respondent 30 days to file an opposition or statement of non-opposition to petitioner's request to amend the petition.

Accordingly, it is hereby ORDERED that:

1. Petitioner's motion for a stay and abeyance, Dckt. No. 19, is denied; and

2. Respondent is directed to file an opposition or statement of non-opposition to petitioner's request to amend the petition, Dckt. No. 21, within thirty days.

20130123

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