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Calderon v. Spearman

United States District Court, S.D. California

July 16, 2014

ROBERT MIRANDA CALDERON, Petitioner,
v.
R.E. SPEARMAN, Warden, Respondent.

ORDER

WILLIAM Q. HAYES, District Judge.

The matter before the Court is the Report and Recommendation (ECF No. 16) of Magistrate Judge Bernard G. Skomal, recommending that this Court grant Petitioner's Motion for Stay and Abeyance (ECF No. 7).

BACKGROUND

On March 12, 2014, Petitioner Robert Miranda Calderon, proceeding pro se, initiated this action by filing a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. ยง 2254 in this Court. (ECF No. 1). The Petition raises three claims, each of which Petitioner alleges has been fully exhausted.

On May 2, 2014, Petitioner filed the Motion for Stay and Abeyance. (ECF No. 7). Petitioner requested that the Court issue an order staying and holding his federal Petition in abeyance while he proceeds with a then-pending petition for writ of habeas corpus in the California Supreme Court raising claims of ineffective of assistance of counsel which are not included in his federal Petition in this Court.

On June 16, 2014, the Magistrate Judge issued a Report and Recommendation which concluded:

[T]he Court recommends that the [Motion for Stay and Abeyance] be GRANTED and the Petition should be stayed and held in abeyance to afford Calderon an opportunity to exhaust his state judicial remedies with regard to his unexhausted claims. It is further recommended that following final action by the state court, petitioner be allowed 30 days to notify the Court that he has completed the exhaustion process in state court by filing a motion to lift the stay which should be accompanied by a complete habeas corpus petition containing the pending exhausted and newly-exhausted ineffective assistance of counsel claims.

(ECF No. 16 at 8).

On June 30, 2014, Petitioner filed a Notice of Decision by the California Supreme Court. (ECF No. 18). Petitioner attaches an order issued June 11, 2014 by the California Supreme Court denying Petitioner's state habeas petition asserting his ineffective assistance of counsel claims.

RULING OF THE COURT

IT IS HEREBY ORDERED that, in light of the Notice of Decision by the California Supreme Court, the Motion for Stay and Abeyance (ECF No. 7) is DENIED AS MOOT and the Report and Recommendation (ECF No. 16) is not adopted. Petitioner is GRANTED leave to file forthwith a First Amended Petition for Writ of Habeas Corpus containing all of petitioner's claims. The First Amended Petition for Writ of Habeas Corpus should be complete in itself, and not incorporate by reference any previously-filed document. As the Magistrate Judge has previously informed Petitioner, a one-year period of limitation applies to a petition for writ of habeas corpus by a person in custody pursuant to the judgment of a State court. See Notice Regarding Possible Failure to Exhaust and One-Year Statute of Limitations, issued April 24, 2014, ECF No. 5. At this time, the Court makes no determination how much time, if any, is remaining for Petitioner to file his First Amended Petition for Writ of Habeas Corpus. This Order is made without prejudice to Respondent raising any affirmative defenses. This case is referred to the Magistrate Judge pursuant to Civil Local Rule 72.1(d).


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