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Marvin v. Swarthout

United States District Court, N.D. California

February 18, 2014

GARY SWARTHOUT, Warden, Respondent.



Petitioner, a state prisoner, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. His motion for leave to proceed in forma pauperis ("IFP") has been granted.

On September 16, 2013, the Court issued an Order granting Petitioner's request for a stay of proceedings while he returned to state court to exhaust his state judicial remedies. On October 22, 2013, Petitioner informed the Court that his state proceedings had concluded, and he filed a first amended habeas petition containing his newly-exhausted claims.[1]

Before the Court are Petitioner's motion to lift the stay and motion to reopen the instant action (Dkt. 9).

Good cause appearing, Petitioner's motions are GRANTED.

The Clerk of the Court shall REOPEN this case and serve a copy of this Order and the first amended petition and all attachments thereto (Dkt. 11) upon Respondent and Respondent's attorney, the Attorney General of the State of California. The Clerk shall also serve a copy of this Order on Petitioner at his most current address.

Respondent shall file with this Court and serve upon Petitioner, within sixty (60) days of the issuance of this Order, an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued. Respondent shall file with the answer a copy of all portions of the state trial record that have been transcribed previously and that are relevant to a determination of the issues presented by the petition.

If Petitioner wishes to respond to the answer, he shall do so by filing a traverse with the Court and serving it on Respondent within sixty (60) days of his receipt of the answer. Otherwise, the petition will be deemed submitted and ready for decision sixty days after the date Petitioner is served with Respondent's answer. Petitioner is reminded that all communications with the Court, whether by way of formal legal motions or informal letters, must be served on Respondent by mailing a true copy of the document to Respondent's counsel.

Extensions of time are not favored, though reasonable extensions will be granted. Any motion for an extension of time must be filed no later than fourteen (14) days prior to the deadline sought to be extended.

It is Petitioner's responsibility to prosecute this case. Petitioner must keep the Court and Respondent informed of any change of address and must comply with the Court's orders in a timely fashion. Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes while an action is pending must promptly file a notice of change of address specifying the new address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail directed to the pro se party by the Court has been returned to the Court as not deliverable, and (2) the Court fails to receive within sixty days of this return a written communication from the pro se party indicating a current address. See L.R. 3-11(b); see also Martinez v. Johnson , 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases).

This Order terminates Docket no. 9.


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