Dao v. Robertson
- William Orrick
- 3:19-cv-01074
- U.S. District Court · Northern District of California
- 2
In Dao v. Robertson, Judge Orrick dissolved the stay, reopened the habeas action, and ordered Dao to file an amended petition by November 15, 2021.
Dao must file an amended petition by November 15, 2021 and comply with the court’s prosecution and address-reporting requirements. The action was reopened; the order did not resolve the merits of his claims.
What happened
In Dao v. Robertson, the federal court had paused the case at Dao’s request while he pursued claims in state court. Dao then asked the court to end the pause and reopen the case.
The court dissolved the stay and reopened the action. It ordered Dao to file an amended petition on the court’s form by November 15, 2021, including every claim he wanted to present. Claims left out would be treated as waived, and he could not simply refer back to an earlier petition.
Judge Orrick warned that failing to file the amended petition or otherwise prosecute the case could lead to dismissal without further notice. The order did not decide the merits of Dao’s habeas claims.
The detailed version
- Dao v. Robertson · No. 3:19-cv-01074
- William Orrick
- Sept. 23, 2021
Background
Cuong Huy Dao brought this federal habeas action against J. Robertson. The court had stayed, or paused, the action at Dao’s request so he could exhaust claims in state court. Dao later filed a notice asking the court to dissolve the stay and reopen the action.
Court’s Order
The court dissolved the stay and reopened the action. The Clerk was directed to modify the docket accordingly.
The court ordered Dao to file an amended petition on the court’s form by November 15, 2021. The amended petition had to use the caption and civil case number in the order and include the words “FIRST AMENDED PETITION” on its first page. Because an amended petition completely replaces earlier petitions, Dao was required to include all claims he wished to present. Claims omitted from the amended petition would be deemed waived, and Dao could not incorporate material from an earlier petition by reference.
The court also stated that Dao was responsible for prosecuting the case and had to keep the court informed of any address change. The court warned that failure to comply could result in dismissal under Federal Rule of Civil Procedure 41(b), including dismissal for failure to prosecute.
Disposition and Scope
The order dissolved the stay and reopened the action, and it directed Dao to file an amended petition by November 15, 2021. It did not decide the merits of the habeas claims. The opinion states that failure to file the amended petition would result in dismissal of the action for failure to prosecute.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.