(HC) Avara v Adams Doc.

Case 2:05-cv-01433-GEB-DAD Document 3 Filed 07/20/2005 Page 1 of 2

8 IN THE UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10 TODD W. AVARA,

11 Petitioner, No. CIV S-04-1044 MCE DAD P

12 vs.

13 WARDEN ADAMS, et al.,

14 Respondents.

15 /

16 TODD W. AVARA,

17 Petitioner, No. CIV S-05-1433 GEB DAD P

18 vs.

19 DARREL G. ADAMS, et al.,

20 Respondents. ORDER

21 /

22 Petitioner in the above-captioned cases is a state prisoner proceeding pro se. Case

23 No. CIV S-04-1044 MCE DAD is a habeas proceeding that was stayed on May 6, 2005. On July

24 18, 2005, petitioner submitted a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

25 The Clerk of the Court has opened a new case and assigned it number CIV S-05-1433 GEB

26 DAD. Both cases concern petitioner’s 2002 conviction in the Yolo County Superior Court.

Dockets.Justia.com
 Case 2:05-cv-01433-GEB-DAD Document 3 Filed 07/20/2005 Page 2 of 2

1 In the stayed case, petitioner was ordered to file a motion to lift the stay, along

2 with a proposed amended petition, within thirty days after the California Supreme Court ruled on

3 petitioner’s state exhaustion petition. On June 30, 2005, petitioner informed the court and

4 respondents’ counsel that the California Supreme Court denied the exhaustion petition on June

5 22, 2005. Petitioner stated that he was preparing a motion to lift the stay and a proposed

6 amended petition. On July 18, 2005, petitioner’s motion to lift the stay was filed in case No. CIV

7 S-04-1044. Although the motion refers to an attached proposed amended petition, no petition is

8 attached to the motion as filed in the stayed case.

9 The court finds that the petition filed in the new case should have been filed as an

10 attachment to the motion filed July 18, 2005, in the stayed case. The Clerk will be directed to re-

11 file the petition as an attachment to the motion filed in the stayed case. The new case will be

12 closed, and the $5.00 filing fee will be refunded to petitioner. After the proposed amended

13 petition has been properly filed in the stayed case, the court will rule on petitioner’s motion and

14 make such further orders as are appropriate.

15 In accordance with the above, IT IS HEREBY ORDERED that:

16 1. The petition filed in case No. CIV S-05-1433 GEB DAD on July 18, 2005,

17 shall be re-filed by the Clerk of the Court in case No. CIV S-04-1044 MCE DAD as an

18 attachment to petitioner’s motion to lift stay (docketed as #22);

19 2. Case No. CIV S-05-1433 GEB DAD shall be closed;

20 3. The $5.00 filing fee paid for case No. CIV S-05-1433 GEB DAD shall be

21 refunded to petitioner; and

22 4. A copy of this order shall be served on the Financial Department of the court.

23 DATED: July 20, 2005.

24

25
DAD:13
26 avar1433.cls