Flannery v. Walker

Filing 6

ORDER signed by Magistrate Judge Gregory G. Hollows on 6/1/10 ORDERING that Clerk of the Court is directed to serve the petition and the motion to stayupon respondent; and Respondent is directed to review the petition and the pending 2 motion to stay and to file a response to the motion to stay, within 21 days. (cc Michael Farrell)(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA ORVAL D. FLANNERY, Petitioner, vs. JAMES WALKER, Warden, Respondent. / Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.1 Petitioner has paid the filing fee. Since petitioner may be entitled to relief if the claimed violation of constitutional rights is proved, respondent will be directed to file a response as set forth below. Petitioner raises three grounds in challenging his 2005 Amador County Superior Court conviction of petty theft with a prior (Cal. Penal Code § 666) and under the three-strikes law (Cal. Penal Code § 667.5) for which he was sentenced to an indeterminate term of 25 years to life. Petition, pp. 1-7. Of the three grounds raised, petitioner alleges that ground three is unexhausted, and he brings a motion for the petition to be stayed pending the state court ORDER No. CIV S-10-0950 GGH P

This case was transferred here from the Fresno Division on April 20, 2010. 1

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exhaustion of the unexhausted ground. See Motion to Stay (docket # 2). The court intends to consider respondent's response to the motion before adjudicating the request for a stay of the petition. Accordingly, IT IS ORDERED that: 1. The Clerk of the Court is directed to serve the petition and the motion to stay upon respondent; and 2. Respondent is directed to review the petition and the pending motion to stay and to file a response to the motion to stay, filed on April 14, 2010 (docket # 2), within twentyone days. DATED: June 1, 2010 /s/ Gregory G. Hollows

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GGH:009 flan0950.ord

GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE