Burnett v. Clark

Full title: CARLOS BURNETT, Petitioner, v. KEN CLARK, Warden, Respondent

Court: United States District Court, E.D. California

Date published: Jan 18, 2008

No. CIV S-01-0481 RRB DAD P (E.D. Cal. Jan. 18, 2008)

Opinion

No. CIV S-01-0481 RRB DAD P.

January 18, 2008

ORDER

DALE DROZD, Magistrate Judge

On June 19, 2003, this court stayed this action so that petitioner could exhaust newly identified claims in state court. Petitioner has since elected not to return to state court with an exhaustion petition and has requested that the court lift the stay in this action and proceed upon his first amended petition and memorandum of points and authorities. Good cause appearing, the court will grant petitioner's request.

Since petitioner may be entitled to habeas corpus relief if the claimed violations of constitutional rights are proved, respondent will be directed to file a response to petitioner's first amended petition.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's January 16, 2008 request to lift stay and file his first amended petition and memorandum of points and authorities is granted;

2. The Clerk of the Court is directed to re-open this case and file petitioner's first amended petition;

3. Respondent is directed to file a response to petitioner's January 16, 2008 first amended habeas petition within thirty days after this order is filed. See Rule 4, Fed.R. Governing § 2254 Cases. An answer shall be accompanied by all transcripts and other documents relevant to the issues presented in the habeas petition. See Rule 5, Fed.R. Governing § 2254 Cases;

4. If the response to petitioner's habeas petition is a motion, the motion shall be noticed and briefed in accordance with Local Rule 78-230(b), (c) and (d);

5. If the response to petitioner's habeas petition is an answer, petitioner's reply to the answer shall be filed and served within thirty days after the answer is served. Any motion for an evidentiary hearing shall be filed and served concurrently with petitioner's reply to the answer; and

6. All motions shall be noticed for hearing before the undersigned on a regularly scheduled law and motion calendar. Parties may appear at the hearing telephonically. To arrange telephonic appearance, a party shall contact Pete Buzo, the courtroom deputy of the undersigned magistrate judge, at (916) 930-4128 no later than three days prior to the hearing.