Opinion
2:19-cv-02328 KJM DB P
03-22-2023
KANE MICHAEL THOMPSON, Petitioner, v. M.E. SPEARMAN, Warden, Respondent.
ORDER
DEBOFAH BARNES UNITED STATES MAGISTRATE JUDGE
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges his 2017 conviction in Sacramento County Superior Court. On November 9, 2021, petitioner filed a motion to stay this action and hold it in abeyance. (ECF No. 40.) Petitioner has now requested to withdraw that motion. (ECF No. 43.) The court will grant petitioner's request and vacate the February 18, 2022 findings and recommendations (ECF No. 41) addressing this motion.
Additionally, petitioner claims that he has subsequently returned to state court and exhausted certain claims. (ECF No. 44.) Petitioner also indicates that he wishes to dismiss his unexhausted claims and proceed only on claims he believes to be properly exhausted. (ECF No. 43.) In light of these facts, petitioner will be given the opportunity to file an amended petition stating all exhausted claims as he has requested. Respondent's pending motion to dismiss unexhausted claims (ECF No. 25) will be dismissed as moot without prejudice to its renewal based on petitioner's amended petition. Should respondent elect to file a motion to dismiss, respondent is free to raise issues of exhaustion, whether petitioner's claims are properly before the court, or any other proper grounds for a motion to dismiss. The court's August 12, 2021 findings and recommendations (ECF No. 37) regarding the motion to dismiss will also be vacated.
For the foregoing reasons, IT IS HEREBY ORDERED that:
1. Petitioner's motion to withdraw the motion for stay and abeyance (ECF No. 43) is granted;
2. Within thirty (30) days of the date of this order, petitioner shall file an amended petition. The amended petition must bear the docket number assigned to this case and must be labeled “Third Amended Petition”;
3. Within thirty days of the date of service of petitioner's Third Amended Petition, respondent shall file a response to the pleading;
4. The Clerk of Court shall send petitioner a copy of this court's Petition for a Writ of Habeas Corpus By A Person in State Custody;
5. The court's February 18, 2022 findings and recommendations (ECF No. 41) and August 12, 2021 findings and recommendations (ECF No. 37) are vacated; and
6. Respondent's motion to dismiss (ECF No. 25) is denied without prejudice to its renewal.