Opinion
No. 2:17-cv-0996 KJM AC
09-19-2018
DAVID ALLEN THOMPSON, Petitioner, v. DAVID BAUGHMAN, Warden, Respondent.
ORDER
Petitioner, a state prisoner proceeding pro se and in forma pauperis, seeks habeas relief pursuant to 28 U.S.C. § 2254. There are several outstanding motions in this case, which are addressed below.
On June 20, 2017, petitioner filed the instant petition. ECF No. 7. On September 7, 2017, respondent was ordered to file a response. ECF No. 11. On September 20, 2017, petitioner filed a motion to stay the petition while he continued the exhaustion process in state court. See ECF No. 14. The court ordered petitioner to specify whether he was seeking a stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005) or pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002). See ECF No. 15.
After seeking a brief extension of time, respondent filed a motion to dismiss. ECF Nos. 16, 17. The motion was based on the contention that thirteen of the fourteen claims in the petition were not exhausted, and one was a state law matter. See ECF No. 17 at 4-5.
Petitioner filed a motion for a Rhines stay on November 20, 2017. ECF No. 19. Respondent's opposition to the motion was filed on December 5, 2017, and petitioner's reply was filed December 26, 2017. ECF Nos. 20, 21. In the opposition, respondent contended that petitioner's motion for a stay should be denied because petitioner had not shown good cause for a stay, and petitioner's unexhausted claims were without merit. See ECF No. 20 at 1-3.
On July 19, 2018, petitioner filed a "request to lift the stay" on the grounds that "[his] appeal was denied." ECF No. 22 at 1 (brackets added). Attached to the request is part of the docket from the California Court of Appeal - Third Appellate District. It indicates that on January 4, 2018, the state appellate court denied petitioner's habeas petition. See ECF No. 22 at 2.
Because there is no stay in place, an order lifting the stay cannot be issued. The court interprets petitioner's request as a representation that he believes that he has exhausted his state court remedies and wishes to proceed. The court takes no position on the exhaustion status of petitioner's claims. However, petitioner's request to lift the stay indicates that petitioner's pending motion for a stay is moot. Moreover, in light of petitioner's representation of changed exhaustion status, the other outstanding motions are also moot or, in the alternative, must be refiled in light of changed circumstances.
Petitioner has not indicated that the California Supreme Court has denied his claims, which is necessary for exhaustion. See Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985) (stating that exhaustion requires fair presentation the state's highest court), cert. denied, 478 U.S. 1021 (1986). --------
Accordingly, petitioner will directed to file a first amended petition containing the claims that he believes are presently exhausted. Thereafter, respondent will be ordered to file a response to the amended complaint.
The first amended petition must be written or typed so that it so that it is complete in itself without reference to any earlier filed complaint. See E.D. Cal., L.R. 220 (2009). This is because an amended petition supersedes any earlier filed petition, and once an amended petition is filed, the earlier filed petition no longer serves any function in the case. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967) (stating amended complaint supersedes original, the latter being treated thereafter as non-existent), overruled on other grounds by Lacey v. Maricopa Cty., 693 F.3d 896 (2012).
Accordingly, IT IS HEREBY ORDERED that:
1. The following motions and requests are DENIED as moot:
a. Petitioner's motion to stay, filed September 20, 2017 (ECF No. 14);
b. Respondent's motion for a fourteen-day extension of time, filed November 3, 2017 (ECF No. 16);
c. Respondent's motion to dismiss, filed November 9, 2017 (ECF No. 17); and
d. Petitioner's motion for a Rhines stay, filed November 20, 2017 (ECF No. 19);
2. Within thirty days of the date of this order, petitioner shall file a first amended petition which shall include all his exhausted claims; and
3. Within sixty days of the date of petitioner's filing of the first amended petition, respondent shall file a response to it. DATED: September 19, 2018
/s/_________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE