Opinion
No. 2:12-cv-1436 GEB DAD P
12-23-2013
ANTHONY EARL RICHARD, Petitioner, v. SUSAN HUBBARD, Respondents.
ORDER
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On September 19, 2013, the court granted petitioner's motion to amend his petition pursuant to the stay and abeyance procedure outlined in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), stayed this case, and ordered petitioner to exhaust any of his unexhausted claims in state court forthwith. On October 15, 2013, less than a month later, petitioner filed a status report in which he explained that he "was currently in the Superior Court waiting on my issues to be heard . . . which was denied." Petitioner further stated in his status report that he would like to file a motion to lift the stay in this action and proceed with this case.
On October 24, 2013, the court advised petitioner that exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). The court further advised petitioner that he satisfies the exhaustion requirement only if he has fairly presented to the California Supreme Court (not a Superior Court) all federal claims before presenting the claims to this federal court. See Baldwin v. Reese, 541 U.S. 27, 29 (2004); Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Wooten v. Kirkland, 540 F.3d 1019, 1025 (9th Cir. 2008). The court instructed petitioner that if he had not fairly presented his claims to the California Supreme Court, he should proceed through the appropriate procedure governing the seeking of habeas relief in state court without delay and continue to file and serve a status report in this case on the first court day of each month. If, on the other hand, petitioner had fairly presented his claims to the California Supreme Court, the court instructed him to file a motion to lift the stay of this action, together with a motion to amend his petition, and a proposed third amended petition containing only exhausted claims. Since the court issued its October 24, 2013 order, petitioner has not filed a status report or a motion to lift the stay of this action.
Accordingly, IT IS HEREBY ORDERED that within fourteen days of the date of service of this order petitioner shall file either: (a) a status report, or (b) a motion to lift the stay of this action, together with a motion to amend his petition, and a proposed third amended petition containing only exhausted claims.
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DALE A. DROZD
UNITED STATES MAGISTRATE JUDGE