Owens v. Pliler

Full title: PATRICK RAYE OWENS, Petitioner, v. CHERYL K. PLILER, Warden, Respondent

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

Date published: Aug 30, 2006

No. CIV S-03-1377 GEB DAD P (E.D. Cal. Aug. 30, 2006)

Opinion

No. CIV S-03-1377 GEB DAD P.

August 30, 2006

ORDER

DALE DROZD, Magistrate Judge

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus. By order filed July 17, 2003, respondent was directed to respond to the petition. Respondent's motion to dismiss the petition as time-barred was denied on January 22, 2004, and respondent filed an answer to the petition on February 23, 2004. Petitioner filed a traverse on March 26, 2004, and the matter was placed on the court's submitted list. Before the court are two motions filed by petitioner: a motion to hold these proceedings in abeyance pending exhaustion of state court remedies on an additional claim and a subsequent motion for leave to file a first amended petition.

In his motion for leave to file an amended petition, petitioner states that he has exhausted his proposed new claim. In light of petitioner's exhaustion of the new claim, his motion to hold these proceedings in abeyance will be denied as moot. Respondent will be directed to file opposition or a statement of non-opposition to petitioner's motion for leave to amend, and petitioner will be directed to file a reply. If the motion for leave to amend is granted, the court will direct the Clerk to file the proposed amended petition, respondent will be directed to file an answer to the amended petition, and petitioner will be directed to file a new traverse.

Petitioner has also filed a motion requesting a copy of his traverse. Petitioner states that his own copy has been misplaced in the course of cell searches conducted in connection with lockdowns at the prison. In the interests of justice, the motion will be granted.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's October 28, 2005 motion to hold proceedings in abeyance is denied as moot;

2. Petitioner's June 9, 2006 motion requesting a copy of his traverse is granted;

3. The Clerk of the Court is directed to send petitioner, with his copy of this order, a copy of the traverse filed on March 26, 2004 (docketed as #16);

4. The Clerk of the Court is directed to amend the docket entry for the document filed on July 17, 2006 (docketed as #21), to reflect that the document is petitioner's motion for leave to amend and proposed first amended petition;

5. Respondent's opposition or statement of non-opposition to petitioner's July 17, 2006 motion for leave to amend shall be filed and served within thirty days after this order is filed; and

6. Petitioner's reply to opposition shall be filed and served within thirty days after any opposition is served.