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Lawrence Remsen v. J. Holland

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 7, 2013

LAWRENCE REMSEN,
PETITIONER,
v.
J. HOLLAND, (A) WARDEN, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER DIRECTING PETITIONER TO FILE A FIRST AMENDED PETITION NO LATER THAN THIRTY (30) DAYS AFTER THE DATE OF SERVICE OF THIS ORDER INFORMATIONAL ORDER TO PETITIONER

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on May 17, 2012 (doc. 4).

I. Background

The petition was filed on May 7, 2012. On May 24, 2012, the Court issued an order to Petitioner to show cause why the petition should not be dismissed for failure to exhaust state court remedies. After Petitioner responded to the order to show cause (OSC), it was discharged by the Court's order of August 8, 2012, in which the Court further dismissed some claims in the petition without leave to amend and granted Petitioner leave to file a first amended petition with respect to his ex post facto claims no later than thirty (30) days after service of the order. The Court's order of August 8, 2012, was served on Petitioner on the same date.

On August 21, 2012, Petitioner filed a motion to alter or amend the Court's order of August 8, 2012. On September 7, 2012, Petitioner filed a motion for an extension of time to justify various claims in the petition and to respond to the Court's order of August 8, 2012. On November 1, 2012, the Court denied the motion to alter or amend the Court's order of August 8, 2012, and granted Petitioner's request for an extension of time in part by affording Petitioner an additional thirty (30) days to file a first amended petition with respect to Petitioner's ex post facto claims. (Doc. 16 at 13, 18-21.) The order further denied a request for injunctive relief. The order was served on Petitioner by mail on November 1, 2012.

On November 19, 2012, Petitioner filed a notice of appeal from the Court's order of November 1, 2012, along with a motion for a stay of the district court's order and a request for a certificate of appealability. This Court denied the motion on November 21, 2012. On November 29, 2012, the Ninth Circuit Court of Appeals noted that the only portion of this Court's order that was immediately appealable was the denial of Petitioner's motion for a preliminary injunction. On February 27, 2013, the Ninth Circuit affirmed this Court's order.

II. Deadline for Filing the First Amended Petition The various proceedings in this Court and in the Ninth Circuit Court of Appeals may have created uncertainty with respect to the deadline for Petitioner's filing of a first amended petition in accordance with this Court's orders of August 8, 2012 (doc. 9) and November 1, 2012 (doc. 16).

Accordingly, it is ORDERED that Petitioner shall FILE his first amended petition no later than thirty (30) days after the date of service of this order.

Petitioner is INFORMED that a failure to file a first amended petition in accordance with the Court's earlier orders and within the time period set forth in this order will result in dismissal of the petition for failure to follow an order of the Court and failure to prosecute the action.

IT IS SO ORDERED.

20130307

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