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Peraza v. Campbell

United States District Court, E.D. California
May 9, 2008
No. CIV S-06-0363 JAM DAD P (E.D. Cal. May. 9, 2008)

Opinion

No. CIV S-06-0363 JAM DAD P.

May 9, 2008


ORDER


Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has paid the filing fee.

In petitioner's original petition, he conceded that he had not presented his twelfth claim for relief in state court because "he recently made the discovery," and requested a stay and abeyance until he exhausted the claim. On August 29, 2006, the court directed petitioner to file a declaration stating when he discovered the new evidence and explaining why he could not have discovered it, through the exercise of due diligence, at an earlier time. The court also directed respondents to respond to petitioner's request for a stay after petitioner filed the declaration. On September 28, 2006, petitioner filed the declaration in accordance with the court's order, and on October 4, 2006, respondents filed a statement of non-opposition to petitioner's request for a stay and abeyance.

On May 14, 2007, petitioner filed a document titled "Stay of Abeyance." Therein, petitioner informed the court that he had now exhausted his twelfth claim and that he had filed a new petition in this court that included the now exhausted claim. However, upon receipt of this petition, the Clerk of the Court erroneously opened a new case, assigning a new case number, Case No. CIV 07-0859 GEB EFB P. Both parties notified the court of this error, and Case No. CIV 07-0859 GEB EFB P was subsequently closed. Petitioner's new petition was also re-filed in this action.

Petitioner has filed several requests for clarification on how to proceed. Petitioner has also filed an unnecessary request for an extension of time to appeal in Case No. CIV 07-0859 GEB EFB P. Finally, petitioner has filed a request for leave to file an amended petition. Petitioner explains that, due to the confusion in this case noted above, he would like to file an amended petition that includes all of his exhausted claims and omits any unexhausted claims. Respondents have filed a statement of non-opposition to petitioner's request. Good cause appearing, petitioner's request for leave to file an amended petition will be granted, and the case will proceed in accordance with this order.

As noted above, Case No. CIV 07-0859 GEB EFB P was opened in error. Petitioner's petition has since been filed in this case.

IT IS HEREBY ORDERED that:

1. Petitioner's February 21, 2006 request for a stay and abeyance is denied as moot;

2. Petitioner's May 14, 2007, June 25, 2007, and September 19, 2007 requests for clarification are granted;

3. Petitioner's July 9, 2007 request to consolidate cases is denied as unnecessary;

4. Petitioner's October 12, 2007 request for an extension of time to appeal is denied as unnecessary;

5. Petitioner's April 7, 2008 request for leave to file an amended petition is granted. Any amended petition shall be submitted within sixty days of the date of this order, must be filed on the form employed by this court and must state all claims and prayers for relief on the form. It must bear the case number assigned to this action and must bear the title "Amended Petition"; and

6. The Clerk of the Court is directed to send petitioner the form for habeas corpus application.


Summaries of

Peraza v. Campbell

United States District Court, E.D. California
May 9, 2008
No. CIV S-06-0363 JAM DAD P (E.D. Cal. May. 9, 2008)
Case details for

Peraza v. Campbell

Case Details

Full title:JOHNNIE RAY PERAZA, Petitioner, v. ROSANNE CAMPBELL, et al., Respondents

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

Date published: May 9, 2008

Citations

No. CIV S-06-0363 JAM DAD P (E.D. Cal. May. 9, 2008)