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Velasquez v. Ayers

United States District Court, S.D. California
Nov 15, 2006
Civil No. 06cv1436-J (NLS) (S.D. Cal. Nov. 15, 2006)

Opinion

Civil No. 06cv1436-J (NLS).

November 15, 2006


ORDER DENYING WITHOUT PREJUDICE PETITIONER'S APPLICATION FOR STAY OF PROCEEDINGS; ORDER EXTENDING DEADLINE FOR PETITIONER TO FILE A FIRST AMENDED PETITION [Doc. No. 7]


On June 1, 2006, Petitioner Carlos Torrez Velasquez, a California state prisoner proceeding pro se, filed a petition for writ of habeas corpus in the Central District of California [Doc. No. 1]. On July 14, 2006, the case was transferred to this Court, which properly has jurisdiction over Petitioner's case. On August 21, 2006, the presiding District Judge dismissed the petition without prejudice and with leave to amend [Doc. No. 4]. Petitioner was instructed to file his first amended petition no later than October 23, 2006. Petitioner requested an extension of time, and the Court set a deadline of November 7, 2006 by which to file the amended petition [Doc. No. 5]. On October 27, 2006, Petitioner instead filed an "Application for Stay of Proceedings under Rhines Pending Exhaustion of State Remedies as to Unexhausted Claims; Request to Substitute Name of Respondent" [Doc. No. 7].

Petitioner appears to argue in his Application that the federal due process claim he wishes to present in this Court has been exhausted, but that it would be futile for him to file an amended petition containing such a claim without a prior finding of exhaustion. It appears he has misread the District Court's August 22, 2006 Order of dismissal, which merely found that Petitioner had not adequately presented his claim as a federal claim, and which also found that Petitioner had not named the proper Respondent. The Court instructed Petitioner that his petition was being dismissed without prejudice and with leave to amend. The Court also advised Petitioner that in order have his case re-opened, it would be necessary to file a first amended petition correcting the deficiencies in his original complaint. Petitioner has failed to do so. Instead, he has requested a stay and abeyance. However, this request is not appropriate since there is no operative petition in this case to hold in abeyance, nor is there any evidence currently before Court from which to conclude that a stay is either necessary or warranted — particularly in light of Petitioner's current representation that he believes his federal claim has been properly exhausted. ( Petitioner's Application, 5.) Therefore, Petitioner's Application is DENIED without prejudice. Petitioner is once again advised that in order to re-open this case, he must file a First Amended Petition, stating a cognizable federal claim, and naming a proper Respondent, either the warden in charge of the state correctional facility in which Petitioner is presently confined or the Director of the California Department of Corrections. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam). Accordingly, IT IS HEREBY ORDERED THAT Petitioner shall file his First Amended Petition no later than December 11, 2006 in conformance with this Order and the District Court's August 22, 2006 Order.

IT IS SO ORDERED.


Summaries of

Velasquez v. Ayers

United States District Court, S.D. California
Nov 15, 2006
Civil No. 06cv1436-J (NLS) (S.D. Cal. Nov. 15, 2006)
Case details for

Velasquez v. Ayers

Case Details

Full title:CARLOS TORREZ VELASQUEZ, Petitioner, v. ROBERT AYERS JR., Warden…

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

Date published: Nov 15, 2006

Citations

Civil No. 06cv1436-J (NLS) (S.D. Cal. Nov. 15, 2006)