(HC) Turner v. Eldridge ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 LAFONZO R. TURNER, No. 2:18-cv-1071 WBS AC P 11 Petitioner, 12 v. ORDER 13 WARDEN ASCUNCION, 14 Respondent. 15 16 Petitioner is a state prisoner proceeding pro se and in forma pauperis with this habeas 17 action filed pursuant to 28 U.S.C. § 2254. This action has been stayed since October 25, 2018, 18 pursuant to Mena v. Long, 813 F.3d 907 (9th Cir. 2016), and Rhines v. Weber, 544 U.S. 269 19 (2005), for the purpose of exhaustion of state court remedies. See ECF Nos. 8, 9. In response to 20 this court’s order filed August 27, 2019, ECF No. 10, petitioner filed a statement, ECF No. 11, 21 informing the court that he had completed exhausting his claims in the state courts and submitted 22 a new federal habeas petition that was filed in a new case, Turner v. Eldridge, Case No. 2:19-cv- 23 01577 KJM GGH P. 24 Review of the docket in Turner v. Eldridge, Case No. 2:19-cv-01577 KJM GGH P,1 25 indicates that the magistrate judge filed findings and recommendations therein on September 11, 26 1 A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 27 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980); see also Fed. R. Evid. 201 (court may take judicial notice of facts that are capable of accurate 28 determination by sources whose accuracy cannot reasonably be questioned). 1 || 2019, recommending the dismissal of that case without prejudice because duplicative of the 2 || instant case. See id., ECF No. 4. This assessment is consistent with petitioner’s express intent 3 || that his recently filed petition be construed as an amended petition in the instant case. 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. The Clerk of Court shall file in the instant case a copy of the petition filed in Turner v. 6 || Eldridge, Case No. 2:19-cv-01577 KJM GGH P (ECE No. 1), and designate it in this case as a 7 | “First Amended Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254.” 8 2. Within thirty (30) days after service of this order, petitioner shall file a motion to lift 9 | the stay in this action and to proceed on the First Amended Petition; the motion shall identify the 10 | claims that were recently exhausted in the state courts and any claims that were previously 11 || exhausted, and shall explain how all of petitioner’s claims are now ripe for decision before this 12 | court. 13 3. Failure of petitioner to timely file a motion to lift the stay in this action and to proceed 14 | on the First Amendment Petition will result in a recommendation that this action be dismissed 15 || without prejudice. 16 IT IS SO ORDERED. 17 | DATED: September 18, 2019 ~ 18 Chthien—Chare ALLISON CLAIRE 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28