(HC) Jacob v. Matteson ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ANTHONY WAYNE JACOB, No. 2:22-cv-2051 DJC DB P 11 Petitioner, 12 v. ORDER 13 MATTESON, 14 Respondent. 15 16 Petitioner, a state prisoner proceeding through counsel, filed a petition for a writ of habeas 17 corpus pursuant to 28 U.S.C. § 2254. Petitioner paid the filing fee. Petitioner argues the court 18 should grant habeas relief because: (1) the lack of sufficient evidence to support the imposition of 19 a firearm enhancement; (2) the lack of sufficient evidence to support the special circumstance; (3) 20 the failure to declare a mistrial; (4) the failure to consider petitioner’s ability to pay before 21 imposing restitution and fines; (5) the ineffective assistance of counsel; (6) petitioner’s actual and 22 factual innocence. (ECF No. 1 at 47-75.) 23 Petitioner filed a motion for stay concurrently with the petition for writ of habeas corpus. 24 (ECF No. 2.) Petitioner stated that a stay was needed so that grounds five and six of the petition 25 could be exhausted. (Id. at 5.) The undersigned directed respondent to file a response to the 26 motion for stay. (ECF No. 5.) Respondent filed a statement of non-opposition. (ECF No. 8.) 27 Thereafter, the undersigned recommended that the motion for stay be granted, and this action be 28 stayed pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). (ECF No. 9.) The findings and 1 || recommendations were adopted, and petitioner was directed to file an initial status report and 2 | periodic status reports thereafter until exhaustion was complete. (ECF No. 11.) 3 Petitioner filed a status report on September 18, 2023, indicating that a petition for writ of 4 | habeas corpus remained pending before the California Supreme Court. (ECF No. 12 at 2.) On 5 | November 28, 2023, petitioner filed a first amended petition. (ECF No. 13.) Therein, petitioner 6 | states that the California Supreme Court denied his petition for writ of habeas corpus on October 7 | 25, 2023. Cd. at 3.) However, petitioner has not filed a motion to lift the stay, motion to amend 8 | the petition, or provided any showing indicating that grounds five and six relate back and should 9 | be deemed timely filed. Accordingly, the court will direct petitioner to file a motion to lift the 10 | stay and/or a motion to amend the petition. Petitioner’s filing should include a statement 11 | indicating whether grounds five and six are appropriate and timely. 12 For the reasons set forth above, IT IS HEREBY ORDERED that: 13 1. Within twenty-eight days of the date of this order petitioner shall file a motion to lift 14 the stay and/or a motion to amend the petition. 15 2. Respondent shall file a response no more than twenty-one days after petitioner’s filing. 16 3. Petitioner shall file a reply, if any, no more than fourteen days after respondent’s 17 filing. 18 || Dated: December 8, 2023 20 1 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 DB:12 28 | DB/DB Prisoner Inbox/Habeas/R/jaco205 1 stay lift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28