Opinion
No. CIV S-05-0625 FCD DAD P.
August 8, 2006
ORDER
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has paid the filing fee.
On January 12, 2006, the court dismissed petitioner's habeas petition and granted petitioner leave to file an amended petition and a motion for a stay and abeyance. Petitioner was granted extensions of time on February 17, 2006, April 20, 2006, and June 13, 2006. On June 22, 2006, petitioner filed his second amended petition, but on June 26, 2006, requested that it be disregarded. On July 14, 2006, a third amended petition was filed which the court construes as the operative petition. However, petitioner has failed to file a motion for a stay and abeyance. The court will provide petitioner with one final opportunity to file his motion in keeping with the court's January 12, 2006 order. Should petitioner fail to meet this deadline, this action will proceed on petitioner's third amended petition setting forth petitioner's exhausted claims.
In the court's June 13 order, petitioner's June 5, 2006 amended petition was dismissed with leave to file a second amended petition. In addition, petitioner was granted 30 days to file his motion for a stay and abeyance.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's second amended petition, filed on June 22, 2006, shall be placed in the file and disregarded;
2. Petitioner's third amended petition, filed on July 13, 2006, is deemed the operative petition for a writ of habeas corpus;
3. Within thirty days from the date of this order, petitioner shall file his motion for a stay and abeyance as set forth in the court's January 12, 2006 order. Petitioner's failure to file a timely motion will result in this action proceeding with petitioner's third amended petition.