United States District Court, N.D. California
ORDER LIFTING STAY; DIRECTING RESPONDENT TO SHOW
CAUSE WHY THE WRIT SHOULD NOT BE GRANTED AS TO
NEWLY-EXHAUSTED CLAIMS; AND DENYING PETITIONER'S MOTIONS
FOR APPOINTMENT OF COUNSEL
Gonzalez Rogers United States District Judge
a state prisoner, filed the instant pro se petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. Following an initial review of the petition, the Court
ordered Respondent to show cause why the petition should not
be granted. Dkt. 5. Respondent has filed an answer to the
petition, and Petitioner has filed a traverse. Dkts. 11, 16.
1, 2015, 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 as to certain
claims. Dkt. 45.
March 18, 2016, Petitioner informed the Court that his state
proceedings had concluded, and he filed a first amended
petition containing his newly-exhausted claims. On May 20,
2016, Petitioner filed a "Second Motion for Leave to
File an Amended Petition for Writ of Habeas Corpus, "
and he filed a "[Proposed] Second Amended Petition for a
Writ of Habeas Corpus." Dkts. 55, 55-1. Because the
Court has not yet ruled on his first motion for leave to
amend, the Court construes Petitioner's "[Proposed]
Second Amended Petition for a Writ of Habeas Corpus" as
an updated first amended petition.
the Court are Petitioner's motion to lift the stay and
his motions for leave to file his first amended petition.
Dkts. 51, 55. Also before the Court are Petitioner's
motions for appointment of counsel. Dkts. 52, 56.
TO LIFT STAY AND TO FILE FIRST AMENDED PETITION
cause appearing, Petitioner's motion to lift the stay is
GRANTED. Petitioner is also GRANTED leave to file his first
amended petition. The Clerk of the Court is directed to mark
Petitioner's first amended petition as filed on May 20,
2016 (dkt. 55-1), the date it was received, and to cross out
"[Proposed] Second Amended Petition for a Writ of Habeas
Corpus" and instead list is as his "First Amended
Clerk of the Court shall REOPEN this case and serve a copy of
this Order and the first amended petition and all attachments
thereto 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
Respondent has already filed a response to the claims on the
original petition, Respondent shall only file with this Court
and serve upon Petitioner, within sixty (60) days of the
issuance of this Order, a supplemental 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 as to the newly-exhausted claims in the first
amended petition. Respondent shall file with the supplemental
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.
Petitioner wishes to respond to the supplemental answer, he
shall do so by filing a supplemental traverse with the Court
and serving it on Respondent within sixty (60) days of his
receipt of the supplemental answer. Otherwise, the first
amended petition will be deemed submitted and ready for
decision sixty days after the date Petitioner is served with
Respondent's supplemental answer.
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.
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
FOR APPOINTMENT OF COUNSEL
seeks the appointment of counsel to assist him because he
claims the "issues in this case are particularly
complex." Dkt. 56 at 1. However, the Court disagrees and
finds appointment ...