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Case 2:13-cv-01565-JAM-DAD Document 4 Filed 07/31/13 Page 1 of 3

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

SHANNON SECREASE,

Petitioner,

No. 2:09-cv-0299 JAM DAD P

vs.

RANDY GROUNDS, et al.,

Respondents.

ORDER

/

Petitioner, a state prisoner proceeding through counsel, has filed in the above-

captioned action a successive petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,

together with a motion to stay pending exhaustion of state court remedies.

Petitioner’s original petition for federal habeas relief filed in this action was

denied on November 22, 2011 and judgment was entered on the same day. (ECF Nos. 74 and

75.) Petitioner filed a notice of appeal on December 20, 2011 (ECF No. 76) and his appeal is

currently pending in the United States Court of Appeals for the Ninth Circuit. Petitioner

represents that the Ninth Circuit has expanded the appointment of his new counsel to including

litigation and exhaustion of new constitutional claims that arose following the decision of the

United States Supreme Court in Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012) and

that he is presently exhausting those claims in the California Supreme Court. (See Motion to

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Case 2:13-cv-01565-JAM-DAD Document 4 Filed 07/31/13 Page 2 of 3

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Stay filed May 30, 2013 (ECF No. 83), at 4.) Review of the appellate docket demonstrates that

petitioner’s appeal has been stayed pending such exhaustion. (See Ninth Circuit Court of

Appeals Docket # 11-18038.) Petitioner has apparently filed the instant petition and motion to

stay out of concern that the statute of limitations may run on his new claims. (See Motion to Stay

(ECF No. 83) at 3.)

As an initial matter, the successive petition should have been filed as a new action

in this court and not in this closed case. Good cause appearing, the Clerk of the Court will be

directed to remove the notice of appearance and the petition filed May 30, 2013 (ECF Nos. 81

and 82), as well as the motion to stay (ECF No. 83) from this action and to open a new habeas

action with those documents. Said new action should be assigned to the undersigned and to the

district judge assigned to this action. (See Local Rule 190.)

Second, in order to proceed with the new action to be opened in accordance with

this order petitioner requires authorization from the Ninth Circuit. See 28 U.S.C. § 2244(b).

While that court has granted petitioner permission to exhaust new claims in state court, petitioner

has not yet presented this court with the required authorization to proceed with those claims. For

that reason, the new action will be stayed and petitioner will be directed to file a motion to lift the

stay within ten days of receipt of any order by the Ninth Circuit granting leave to proceeding with

the successive petition for habeas relief before this court. Petitioner’s motion to stay under

Rhines v. Weber, 544 U.S. 269 (2005) (ECF No. 83) is mooted by this order and will therefore

be denied.

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

1. The Clerk of the Court is directed to remove ECF Nos. 81, 82, and 83 from the

record in this action and to open a new action with those documents and a copy of this order.

Said new action shall be assigned to the undersigned and to the Honorable John A. Mendez.

2. The new action shall be stayed until further order of court. Within ten days of

receipt of any order by the Ninth Circuit granting leave to proceed with the successive petition

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Case 2:13-cv-01565-JAM-DAD Document 4 Filed 07/31/13 Page 3 of 3

pursuant to 28 U.S.C. § 2244(b), petitioner shall file in that action a motion to lift the stay. Said

motion shall be accompanied by said order from the Ninth Circuit and, as appropriate, the $5.00

filing fee for a habeas corpus action or a motion for leave to proceed in forma pauperis.

Petitioner is advised that the new action will not proceed further unless and until a motion to stay

is filed in accordance with this order and granted by the court.

3. Petitioner’s motion to stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005)

is denied as moot.

DATED: July 30, 2013.

DAD:12

secr09cv0299.o

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