Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On January 15, 2013, the undersigned directed respondent to file a response to the petition within 60 days. Dckt. No. 3. On February 6, 2013, petitioner filed a motion to stay this proceeding. Dckt. No. 12. In his motion, petitioner requests this court hold his petition in abeyance to allow him to return to state court to exhaust three unexhausted claims. Respondent opposes the motion to stay. Dckt. No. 14.
On May 8, 2013, petitioner filed a request for an extension of time to file an amended petition. Dckt. No. 20. Petitioner explains that he has now exhausted the claims for which he sought a stay of these proceedings. He also requests this court grant him a 30-day extension of time to file an amended petition included the recently exhausted claims. As it appears that petitioner has exhausted the claims for which he sought a stay, petitioner's motion for a stay will be denied as moot.
Further, the undersigned will grant petitioner 30 days to file an amended petition. Respondent has been granted multiple extensions of time to file a response to the petition. See Dckt. Nos. 17, 19. Currently, a response to the petition is due on or before May 17, 2013. Since respondent has yet to file a response to the petition, petitioner may file an amended petition as a matter of course without seeking this court's permission. See Fed. R. Civ. P. 15(a)(1). However, since a response is due this week and it is clear that petitioner intends to file an amended petition, the undersigned will extend respondent's deadline for submitting a response and order petitioner to file an amended petition by June 12, 2013. Upon receipt of the amended petition, the court will review it and, if necessary, direct respondent to file a response to the amended petition. See Rule 4, Rules Governing § 2254 Cases. Should petitioner fail to file an amended petition by June 12, 2013, this action will proceed on the original petition and respondent shall file a response to the original petition on or before July 12, 2013.
Accordingly, it is hereby ORDERED that:
1. Petitioner's motion to stay, Dckt. No. 12, is denied as moot.
2. Petitioner request for 30 days to file an amended petition, Dckt. No. 20, is granted.
3. Petitioner shall file an amended petition for a writ of habeas corpus on or before June 12, 2013. The amended petition must bear the docket number assigned to this action and be styled, "First Amended Petition." The petition must also be complete in itself without reference to any prior petition.
4. Should petitioner fail to timely file an amended petition, this action will proceed on the original petition, Dckt No. 1, and respondent shall have until July 12, 2013 to file a response to the original petition.
© 1992-2013 VersusLaw ...