Banks v. Dexter
Filing
24
ORDER DENYING as MOOT Petitioner's Second 10 Motion to Proceed on Petition, signed by Magistrate Judge Jennifer L. Thurston on 3/3/2010. (Sondheim, M)
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U . S . D is t r ic t C o u r t E. D . C a lifo r n ia
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA MICHAEL L. BANKS, ) ) Petitioner, ) ) ) v. ) ) ) DEBRA DEXTER, ) ) Respondent. ) ____________________________________) 1:09-cv-00152--BAK-SMS HC ORDER DENYING AS MOOT PETITIONER'S SECOND MOTION TO PROCEED ON PETITION (Doc. 10)
PROCEDURAL HISTORY Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed his petition on January 26, 2009. (Doc. 1). On February 19, 2009, and again on March 26, 2009, Petitioner filed motions to stay proceedings that were identical. (Docs. 6 & 7). On July 7, 2009, Petitioner file a "motion to proceed on petition," in which Petitioner expressed his wish to forego any stay and continue with the proceedings because, on June 30, 2009, the California Supreme Court had denied his state petition that, apparently, raised the very issue that was the subject of Petitioner's two motions to stay. (Doc. 9). Petitioner indicated that because the issue was now exhausted and because "that issue has already been incorporated in his pending petition," he wished to proceed with the petition as presently constituted. (Id.). Two days later, on July 9, 2009, Petitioner filed a virtually identical motion to proceed on the petition. (Doc. 10). 1
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U . S . D is t r ic t C o u r t E. D . C a lifo r n ia
On July 13, 2009, the Court issued an order construing Petitioner's July 7, 2009 "motion to proceed on petition" as a motion to withdraw his two prior motions for stay. (Doc. 14). So construing Petitioner's first motion to proceed, the Court granted that motion and disregarded the two earlier motions for stay. (Id.). However, at the time of the July 13, 2009 order, the Court was unaware Petitioner had filed yet another motion to proceed on July 9, 2009. (Doc. 10). Accordingly, the Court addresses that order now and will deny that motion as moot in light of the Court's order of July 13, 2009. ORDER For the foregoing reasons, the Court HEREBY ORDERS as follows: 1. Petitioner's motion to proceed on petition filed on July 9, 2009 (Doc. 10), is DENIED as MOOT in light of the Court's order of July 13, 2009.
IT IS SO ORDERED. Dated: March 3, 2010 9j7khi /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE
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