(HC) Prince v. Ramsey ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID SWANK PRINCE, No. 2: 20-cv-1962 TLN KJN P 12 Petitioner, 13 v. ORDER 14 MICHAEL RAMSEY, 15 Respondent. 16 17 Petitioner is a former state prisoner, proceeding without counsel, with a petition for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, petitioner is granted 19 thirty days from the date of this order to file an amended petition raising all claims he intends to 20 raise in this action, exhausted and unexhausted. 21 On April 19, 2021, the undersigned ordered petitioner to inform the court within thirty 22 days whether he intended to raise the claims raised in his pending state appeal in the instant 23 action. (ECF No. 21.) If petitioner intended to raise his appellate claims in the instant action, the 24 undersigned ordered petitioner to file a motion to stay pursuant to Rhines v. Weber, 544 U.S. 269 25 (2005), or Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002). (Id.) If petitioner requested a stay 26 pursuant to Rhines, petitioner was directed to file an amended petition raising his exhausted and 27 unexhausted claims. (Id.) 28 //// 1 On September 14, 2021, petitioner filed a motion to stay this action pursuant to Rhines. 2 | (ECF No. 29.) However, petitioner did not file an amended petition raising all of his claims, 3 || exhausted and unexhausted, as required for a stay pursuant to Rhines. Accordingly, petitioner is 4 || granted thirty days from the date of this order to file an amended petition raising all of his claims, 5 || exhausted and unexhausted. Following receipt of the amended petition, the undesigned will 6 || address petitioner’s motion to stay.! 7 On September 7, 2021, petitioner filed a request for a continuance. (ECF No. 28.) The 8 | undersigned construes this request as a motion for extension of time to respond to the April 19, 9 || 2021 order. Good cause appearing, this request is granted and petitioner’s September 14, 2021 10 || motion to stay is deemed timely filed. 11 Accordingly, IT IS HEREBY ORDERED that: 12 1. Petitioner’s September 7, 2021 request for a continuance (ECF No. 28), construed as 13 a motion for extension of time, is granted; 14 2. Petitioner is granted thirty days from the date of this order to file an amended petition 15 raising all of his claims, exhausted and unexhausted. 16 Dated: September 24, 2021 Keri) 7 AO 18 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 19 20 Pr1962.ord(4) 21 22 | | . . . . . □□ The original petition raised claims alleging ineffective assistance of trial counsel, violation of 23 || Brady v. Maryland, 373 U.S. 83 (1962) and, possibly, a claim alleging denial of the right to self- representation based on denial of access to a private investigator, denial of access to the law 24 || library, etc. (ECF No. 1.) Petitioner indicated that no claim raised in the original petition was exhausted. (Id.) In his state appeal, which appears to be still pending, petitioner alleges violation 25 | of his constitutional right to present a defense based on the trial court’s evidentiary rulings. (ECF 26 || No. 29 at 5.) In the motion to stay, petitioner states that he also intends to raise a claim alleging ineffective assistance of appellate counsel. (Id. at 1.) This claim appears unexhausted. 27 The amended petition shall include all of the claims discussed above if petitioner intends to raise them in this action. The amended petition shall also address whether any of the claims 28 | have been exhausted.