(HC) Xiong v. Asuncion ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN XIONG, No. 2:18-cv-0373 TLN KJN P 12 Petitioner, 13 v. ORDER 14 P. ASUNCION, 15 Respondent. 16 17 Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. Petitioner raises one claim: his appellate counsel was 19 ineffective for filing a Wende1 brief on appeal. 20 Pending before the court is petitioner’s motion to stay this action in order to exhaust 21 additional claims. (ECF No. 17.) On August 12, 2019, petitioner filed a notice stating that he has 22 completed exhaustion of his additional claims. (ECF No. 23.) Good cause appearing, petitioner’s 23 motion to stay is vacated. 24 Attached to petitioner’s August 12, 2019 notice is a copy of his petition filed in the 25 California Supreme Court. The petition filed in the California Supreme Court raises the 26 following claims: 1) counsel failed to investigate and object to sentencing error (id. at 17-19); 27 28 1 People v. Wende, 25 Cal.3d 436 (1979). 1 | 2) sentencing error Gd. at 20-21); 3) imposition of sentence pursuant to California Penal Code 2 | § 186.22 violates due process (id. at 22); 4) trial judge erred in imposing sentence pursuant to 3 | California Penal Code § 12022.53 (id. at 23-25); 5) failure to apply Senate Bill 620 retroactively 4 | violates the Equal Protection clause (id. at 25-27); and 6) trial court violated petitioner’s right to 5 | due process by failing to grant petitioner credits California Penal Code § 4019 (id. at 27-30). 6 The undersigned construes petitioner’s August 12, 2019 pleading as a motion to amend 7 | the petition to raise the claims raised in the petition filed in the California Supreme Court. 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. Petitioner’s motion to stay (ECF No. 17) is vacated; 10 2. Petitioner’s August 12, 2019 notice of completion of exhaustion is construed as a 11 | motion to amend; respondent shall file a response to the motion to amend within thirty days of the 12 | date of this order; petitioner may file a reply within thirty days thereafter. 13 | Dated: August 23, 2019 i Aectl Aharon 15 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 16 X1373.vac 17 18 19 20 21 22 23 24 25 26 27 28