Opinion
No. 2:11-cv-1315 KJM EFB P
07-17-2012
GABRIEL PRICE, Petitioner, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et. al., Respondents.
ORDER
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner's February 17, 2012 motion for a stay and abeyance, in which petitioner requests that the court stay the case while he exhausts his claims in state court. See Dckt. No. 34.
On March 1, 2012, respondents filed an opposition to petitioner's motion for a stay and abeyance. See Dckt. No. 36. Respondents argue that the motion should be denied because the petition contains all unexhausted claims, petitioner unreasonably delayed presenting his claims to the California Supreme Court, and petitioner has failed to show that his claims have merit.
On April 9, 2012, petitioner filed a document titled "Motion to Take Judicial Notice Pursuant to FRCP." Dckt. No. 37. In the document, petitioner argues that his motion to stay the case is now moot because the California Supreme Court has denied his habeas petition and all of his claims are now exhausted. Dckt. No. 37 at 1-2. The filing includes a copy of the California Supreme Court's denial of his habeas petition. Id. at 8. As it appears that the petition no longer contains unexhausted claims, petitioner's motion for a stay and abeyance will be denied as moot. In light of respondents filing an answer prior to petitioner exhausting all of his claims, respondents will be given an opportunity to file a supplemental answer.
Accordingly, it is ORDERED that:
1. Respondents shall file and serve a supplemental answer or a statement that respondents do not wish to file a supplemental answer within 30 days of the date of this order.
2. Respondents shall submit a copy of petitioner's petition for writ of habeas corpus filed in the California Supreme Court and any other additional documents relevant to the determination of the issues presented in the application. See Rules 4, 5, Rules Governing § 2254 Cases.
3. Petitioner's reply, if any, shall be filed and served within 30 days of service of the revised answer or statement that respondents do not wish to file a revised answer.
______________________
EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE