Stankewitz v. Adams

Full title: WILLIAM ROBERT STANKEWITZ, Petitioner, v. DERRAL G. ADAMS, Respondent

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

Date published: Jul 7, 2010

1:06-cv-01220-LJO-JLT HC (E.D. Cal. Jul. 7, 2010)

Opinion

1:06-cv-01220-LJO-JLT HC.

July 7, 2010

ORDER GRANTING PETITIONER'S MOTION TO WITHDRAW GROUND SIX AND PROCEED ON THE REMAINING EXHAUSTED GROUNDS (Doc. 35) ORDER REQUIRING RESPONDENT TO FILE AN ANSWER ORDER SETTING BRIEFING SCHEDULE ORDER DIRECTING CLERK OF COURT TO SERVE DOCUMENTS

JENNIFER THURSTON, Magistrate Judge

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

On February 14, 2008, Respondent filed a motion to dismiss the petition because it was a mixed petition due to the fact that Ground Six had not been exhausted in state court. (Doc. 13). Subsequently, Petitioner requested, and was granted, a stay of proceedings in order to exhaust Ground Six. (Docs. 12 19). On May 5, 2010, the Court issued an order lifting the stay of proceedings because of Petitioner's failure to keep the Court apprised of the status of his exhaustion efforts through regularly filed status reports. (Doc. 33). That order also contained Findings and Recommendations that Ground Six was not exhausted, that the petition was therefore a mixed petition, and that Respondent's motion to dismiss should be granted. (Id.). The Findings and Recommendations indicated that Petitioner would be given an opportunity to withdraw Ground Six and proceed on the remaining claims before the Court dismissed the petition outright as a mixed petition. The Findings and Recommendations were adopted by the District Judge on June 17, 2010. (Doc. 34). As part of that order, the Court required that Petitioner file a motion to withdraw the unexhausted Ground Six within fifteen days or risk having the entire petition dismissed as a mixed petition. On July 6, 2010, Petitioner filed a motion requesting that Ground Six be withdrawn and that he be permitted to proceed on the remaining, exhausted grounds. (Doc. 35).

Based on the foregoing procedural history, and pursuant to Rule 4 of the Rules Governing Section 2254 Cases and Rule 16 of the Federal Rules of Civil Procedure, ¹ the Court HEREBY ORDERS as follows:

1 The Federal Rules of Civil Procedure "apply to proceedings for habeas corpus . . . to the extent that the practice in those proceedings (A) is not specified in a federal statute, the Rules Governing Section 2254 Cases, or the Rules Governing Section 2255 Cases; and (B) has previously conformed to the practice in civil actions." Fed.R.Civ.P. 81(a)(4). Rule 12 also provides "[t]he Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules." Rule 12, Rules Governing Section 2254 Cases.

1. Petitioner's motion to withdraw Ground Six and proceed on Grounds One through Five (Doc. 35), is GRANTED;

2. Respondent SHALL FILE an ANSWER to Grounds One, Two, Three, Four, and Five in the Petition² within SIXTY (60) days of the date of service of this order. See Rule 4, Rules Governing Section 2254 Cases; Cluchette v. Rushen, 770 F.2d 1469, 1473-1474 (9^th Cir. 1985) (court has discretion to fix time for filing a response). Respondent SHALL INCLUDE with the Answer any and all transcripts or other documents necessary for the resolution of the issues presented in the Petition. See Rule 5, Rules Governing Section 2254 Cases. Any argument by Respondent that Petitioner has procedurally defaulted a claim SHALL BE MADE in the ANSWER, but must also address the merits of the claim asserted.

3. Petitioner MAY FILE a Traverse within THIRTY (30) days of the date Respondent's Answer is filed with the Court. If no Traverse is filed, the Petition and Answer are deemed submitted at the expiration of the thirty days.

4. Unless already submitted, both Respondent and Petitioner SHALL COMPLETE and RETURN to the Court within THIRTY (30) days a Consent/Decline form indicating whether the party consents or declines to consent to the jurisdiction of a the United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c)(1).

5. The Clerk of the Court is DIRECTED to SERVE a copy of this order on the Attorney General or his representative.

2 Respondent is advised that a scanned copy of the Petition is available in the Court's electronic case filing system ("CM/ECF").

All motions shall be submitted on the record and briefs filed without oral argument unless otherwise ordered by the Court. Local Rule 230(l). Extensions of time will only be granted upon a showing of good cause. All provisions of Local Rule 110 are applicable to this order.

IT IS SO ORDERED.