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Rodriguez v. Busby

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
Apr 3, 2012
No. CIV S-11-2199 WBS CKD P (E.D. Cal. Apr. 3, 2012)

Opinion

No. CIV S-11-2199 WBS CKD P

04-03-2012

NOEL RODRIGUEZ, Petitioner, v. TIMOTHY BUSBY, Respondent.


ORDER

Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Petitioner filed the original petition on August 18, 2011, as well as a motion for stay and abeyance, and a request to proceed in forma pauperis. (Dkt. Nos. 1, 2, and 3.) On November 4, 2011, this court issued an order granting the petitioner's request to proceed in forma pauperis, denying the motion for stay without prejudice, and giving the petitioner thirty days to notify the court whether he wished to persist in his request to stay to allow him to exhaust Claims 4 and 5 of the original petition in the state courts, or whether he wished to file an amended petition omitting the claims which had not yet been exhausted. (Dkt. No. 8.)

On November 21, 2011, petitioner filed a renewed motion to stay the case pending exhaustion of claims 4 and 5. (Dkt. No. 9.) He also filed an Amended Petition asserting Claims 1-3. (Dkt. No. 10.)

On February 7, 2012, petitioner filed a motion stating that he had recently exhausted Claims 4 and 5. (Dkt. No. 13.) He also filed a Second Amended Petition asserting Claims 4-5. (Dkt. 12.) Petitioner seeks to "consolidate" these petitions such that the final petition contains all five allegedly exhausted claims.

Rather than "consolidate" two separate pleadings into a single petition, the court will grant petitioner 30 days' leave to file a third amended petition containing all five claims.Because petitioner's pending motion to stay the action while he exhausts Claims 4 and 5 is now moot, the court will deny it as such.

If petitioner wishes to simply resubmit the substantive portions of his Amended and Second Amended Petitions with, e.g., a new table of contents renumbering the claims 1-5, that is sufficient, so long as they comprise one Third Amended Petition that may be served upon respondent.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Petitioner's November 21, 2011 renewed motion to stay (Dkt. No. 9) is denied as moot;

2. Petitioner's February 7, 2012 motion for consolidation (Dkt. No. 13) is denied;

3. Petitioner's February 7, 2012 motion to proceed in forma pauperis (Dkt. No. 14) is denied as moot; and

4. Petitioner is granted thirty days from service of this order to file a Third Amended Petition.

_________________________

CAROLYN K. DELANEY

UNITED STATES MAGISTRATE JUDGE


Summaries of

Rodriguez v. Busby

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
Apr 3, 2012
No. CIV S-11-2199 WBS CKD P (E.D. Cal. Apr. 3, 2012)
Case details for

Rodriguez v. Busby

Case Details

Full title:NOEL RODRIGUEZ, Petitioner, v. TIMOTHY BUSBY, Respondent.

Court:UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Date published: Apr 3, 2012

Citations

No. CIV S-11-2199 WBS CKD P (E.D. Cal. Apr. 3, 2012)