Ramirez v. Stolc

Full title: PEDRO A. RAMIREZ, Petitioner, v. BURNO STOLC, Respondent.

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

Date published: Sep 6, 2013

2:12-cv-02671 KJM KJN P (E.D. Cal. Sep. 6, 2013)

Opinion

PEDRO A. RAMIREZ, Petitioner, v. BURNO STOLC, Respondent. No. 2:12-cv-02671 KJM KJN P United States District Court, E.D. California. September 6, 2013

          ORDER

          KENDALL J. NEWMAN, Magistrate Judge.

         On October 31, 2012, this court granted petitioner's request to stay this habeas corpus action pending the state court exhaustion of two of petitioner's three claims. (ECF No. 4.) Petitioner was directed to file in this court, within thirty days after the California Supreme Court issued a final order resolving petitioner's Claims One and Two, a motion requesting that the stay be lifted and leave of court be granted to file an amended petition for writ of habeas corpus, together with the proposed amended petition. (Id.)

         On July 29, 2013, petitioner filed an amended petition for writ of habeas corpus. (ECF No. 7.) The amended petition contains only petitioner's Claims One and Two, which now appear to be exhausted. However, the amended petition does not include petitioner's original Claim Three. Nor is the amended petition accompanied by a request that the stay in this action be lifted. The omission of petitioner's third claim, if intended by petitioner, may indicate that his original petition was not "mixed" (containing both exhausted and unexhausted claims), as petitioner then claimed, and thus could not be "stayed and abeyed." Rhines v. Weber, 544 U.S. 269 (2005). If plaintiff intentionally omitted his Claim Three, he must expressly inform the court, in which event the court will re-evaluate the propriety of the stay that was previously granted.

         Alternatively, petitioner may file a Second Amended Petition that includes all three of petitioner's claims, provided petitioner intends to proceed on all three claims.

         Accordingly, IT IS HEREBY ORDERED that:

         1. Petitioner shall, within thirty (30) days after service of this order, file a motion requesting that the stay in this action be lifted (on the ground that petitioner has now exhausted all of his state court remedies), accompanied by one of the following:

         A. A request for leave of court to file a "Second Amended Petition for Writ of Habeas Corpus, " which includes all three of petitioner's claims, a copy of which is attached to petitioner's motion;

OR

         B. A statement that petitioner seeks to drop his Claim Three, with an explanation why this action should proceed on petitioner's First Amended Petition for Writ of Habeas Corpus, which contains only petitioner's Claims One and Two.

         2. The Clerk of Court is directed to send petitioner a copy of the form used in this district for filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254

         SO ORDERED.