Opinion
CV 19-08576-SVW(DFM)
05-08-2024
Steven Wright v. Josie Gastello
Present Honorable Douglas F. McCormick, United States Magistrate Judge.
CIVIL MINUTES - GENERAL
Proceedings: (IN CHAMBERS) Order to Show Cause
In October 2019, Petitioner Steven Wright, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. See Dkt. 1 (“Petition”). Petitioner challenges his convictions for murder and attempted murder, with enhancements. See id. at 2.
In March 2020, Petitioner filed a “Motion for Stay and Abeyance,” in which he sought to stay this case and hold it in abeyance while he returned to state court to exhaust four claims not asserted in the original Petition. See Dkt. 22. The Court construed this filing as a motion to amend the petition to add new, unexhausted claims, which he would then exhaust in state court (with the Court's leave). See Dkt. 23. After hearing from Respondent, the Court issued an order in June 2020 granting a stay of the Petition under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2013). See Dkt. 27. The Court ordered that the Petition “shall be held in abeyance until thirty (30) days after the California Supreme Court issues its order disposing of Petitioner's unexhausted claims. Within that period of time, Petitioner shall serve and file a motion to amend his Petition to add his newly exhausted claims. The motion to amend shall be made in strict compliance with Local Rules 15-1 and 15-2.” Id. at 3.
In September 2021, Petitioner filed a document titled “Notice of Inactivity of the Petitioner.” See Dkt. 28. In it, he states that he retained counsel to represent him in his habeas proceedings but that the COVID-19 pandemic hindered his ability to communicate with counsel and that “a seeming conflict of interest” arose “within the office(s) of the Petitioner['s] retained counsel.” Id. at 1. He also asserts that an investigator hired by Petitioner's counsel discovered new evidence and was preparing said evidence to present “to the court.” Id.
Apart from this letter, Petitioner has not filed anything else in this case. Moreover, from a review of publicly available records, it appears that Petitioner has not filed anything in the California Supreme Court since the Court granted his stay request years ago. See California Appellate Courts Case Information, https://appellatecases.courtinfo.ca.gov/ search.cfm?dist=0 (search by name “Steven Wright”) (last accessed May 6, 2024).
It is Petitioner's responsibility to prosecute this action diligently. Accordingly, the Court hereby ORDERS Petitioner to show cause in writing no later than twenty-eight (28) days from the date of this order why this action should not be dismissed for lack of prosecution. If Petitioner believes he has exhausted his unexhausted claims, he shall file documents demonstrating the same, along with a motion to amend the Petition and a proposed First Amended Petition adding the newly exhausted claims. If Petitioner has not exhausted his unexhausted claims and seeks to proceed only on his exhausted claims, he may discharge this order by filing a motion to vacate the stay and proceed on his original Petition. Petitioner may also request that this action be dismissed without prejudice under Federal Rule of Civil Procedure 41(a)(1), with the understanding that any later petition may be time barred under 28 U.S.C. § 2244(d)(1).
According to publicly available records, Petitioner is currently in custody at San Quentin Rehabilitation Center, a different facility than his address of record. Under Local Civil Rule 41-6, Petitioner must keep the Court informed of his current address. Failure to do so may result in a recommendation that this case be dismissed for failure to prosecute. See L.R. 41-6. The Clerk is directed to serve a copy of this Order on Petitioner at both his address of record and San Quentin Rehabilitation Center, 100 Main Street, San Quentin, CA 94964.