Opinion
No. CIV S-10-2663 GGH P.
February 3, 2011
ORDER
By Order, filed on 10/18/10, petitioner's defective application for a writ of habeas corpus was dismissed with leave to amend and petitioner was directed to submit an in forma pauperis affidavit or to pay the required filing fee within twenty-eight days. Petitioner was cautioned that failure to comply with the court's order would result in dismissal of this action. Petitioner has consented to the jurisdiction of the undersigned. See docket # 4, filed on 10/22/10. By filing dated 10/28/10, petitioner submitted an in forma pauperis application which reveals that petitioner is unable to afford the costs of suit.
Petitioner has been generously granted two extensions of time to file an amended habeas petition, pursuant to 28 U.S.C. § 2254.See docket # 8 and docket # 10. The extensions of time have now expired, but prior to expiration of the second extension, petitioner, on 1/05/11, filed a motion to stay this action due to a case upon which he states he is proceeding before the California Supreme Court regarding possible re-sentencing for which he believes he may need to file a response to the Attorney General's informal response to his petition, which petitioner avers the state supreme court has requested. However, at the most basic level, this court cannot grant a stay of this action because there are no claims before it at this time. The prior application was dismissed as defective because petitioner inappropriately therein sought to challenge the AEDPA. Leave was granted so that petitioner would have an opportunity to set forth a particular conviction or sentence he might seek to challenge.
Since there is no petition pending before the court, therefore, the stay request must be denied. The time for filing his amended petition has expired and petitioner was cautioned that there would be no further extension. However, since his motion for a stay, although without foundation, was filed prior to the expiration of the second extension of time, the court will generously afford petitioner an additional fourteen days to file an amended petition. Failure to do so will result in dismissal of this action. Petitioner is cautioned to seek no further extension of time.
Accordingly, IT IS ORDERED that:
1. Petitioner's application to proceed in forma pauperis is granted. See 28 U.S.C. § 1915(a);
2. Petitioner's insupportable motion for a stay of this action, filed on 1/05/11 (docket # 11), must be denied;
3. Petitioner is granted a final extension of time of fourteen days from the date of this order to file an amended petition; failure to do so will result in dismissal of this action; and
4. There will be no further extension of time.
DATED: February 3, 2011