United States District Court, N.D. California
ORDER DISMISSING AS MOOT MOTION TO STAY AND ABEY;
GRANTING REQUEST TO SET BRIEFING SCHEDULE, Re: Dkt. Nos. 15,
HAYWOOD S. GILLIAM, JR UNITED STATES DISTRICT JUDGE
an inmate at Centinela State Prison, filed this pro
se action seeking a writ of habeas corpus pursuant to 28
U.S.C. § 2254. On May 20, 2019, Petitioner filed a
second habeas petition in the record and a motion to stay or
hold the petition in abeyance. Dkt. Nos. 14, 15. Because the
initial petition docketed at Dkt. No. 1 and the petition
docketed at Dkt. No. 14 asserted different claims, on June
28, 2019, the Court issued an order requiring Petitioner to
inform the Court whether the petition filed at Dkt. No. 14
was intended to be an amended petition or was an attempt to
supplement the initial petition. Dkt. No. 16. On July 29,
2019, Petitioner informed the Court that the initial petition
should remain the operative complaint:
I filed a stay and abey to hold my first habeas while pending
in state. I thought however the state answered so I was ready
to proceed in both, but since I can't use both of those I
will stay with my original petition Docket #1.
Dkt. No. 18 at 1. However, petitioner also states in this
response, “ . . . since I want [to] be able to also use
my second habeas I've enclosed and highlighted a few
simple points” and sets forth the following arguments:
the judge and jury were biased; the judge lied about the jury
questionnaire; no Black jurors were picked; petitioner was
never allowed to speak; counsel refused to carry out
petitioner's requests; the police report incorrectly
listed his ex-girlfriend's place of employment as
Kenton's; and the original statement never mentioned
rape. Dkt. No. 18 at 1-2. On August 9, 2019, the Court
docketed another letter from petitioner wherein he reiterated
that he wished for the initial petition to be the operative
the Court orders as follows. Per petitioner's letters to
the Court, the original petition (Dkt. No. 1) remains the
operative petition. Petitioner's request to stay and abey
the petition pending exhaustion of state remedies is
therefore DENIED as moot. Dkt. No. 15. Respondent's
request to set a briefing schedule with respect to the motion
to stay and abey is also DENIED as moot. Dkt. No. 19.
original petition, Dkt. No. 1, remains the operative
Petitioner's request to stay and abey the petition
pending exhaustion of state remedies is DENIED as moot. Dkt.
No. 15. Respondent's request to set a briefing schedule
with respect to the motion to stay and abey is also DENIED as
moot. Dkt. No. 19.
Court sets the following briefing schedule. Respondent shall
file with the Court and serve on petitioner, within
ninety-one (91) 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 granted based on the claims
found cognizable in the Court's April 30, 2019 Order to
Show Cause (Dkt. No. 11). Respondent shall file with the
answer and serve on petitioner 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 thirty-five (35)
days of the date the answer is filed.
may file, within ninety-one (91) days, a
motion to dismiss on procedural grounds in lieu of an answer,
as set forth in the Advisory Committee Notes to Rule 4 of the
Rules Governing Section 2254 Cases. If respondent files such
a motion, petitioner shall file with the Court and serve on
respondent an opposition or statement of non-opposition
within twenty-eight (28) days of the date
the motion is filed, and respondent shall file with the Court
and serve on petitioner a reply within fourteen (14)
days of the date any opposition is filed.
Petitioner is reminded that all communications with the Court
must be served on respondent by mailing a true copy of the
document to respondent's counsel.
Petitioner must keep the Court informed of any change of
address and must comply with the Court's orders in a
timely fashion. Failure to do so may result in the dismissal
of this action for failure to prosecute pursuant to Federal
Rule of Civil Procedure 41(b). See Martinez v.
Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b)
applicable in habeas cases).
order terminates Dkt. Nos. 15 and 19.