Cruz v. State of California

Filing 17

ORDER signed by Magistrate Judge Allison Claire on 1/17/17 ordering respondent is hereby directed to file an opposition or a notice of non-opposition to petitioner's stay and abeyance motion within 21 days from the date of this order. Petition er's reply, if any, is due 7 days thereafter. If petitioner exhausts any claims in the California Supreme Court prior to this court's resolution of the pending motion, petitioner shall file a notice of exhaustion in this court. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THOMAS CRUZ,

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No. 2:16-cv-0498 TLN AC P
Petitioner,

v.

ORDER

STATE OF CALIFORNIA,
Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. On January 11, 2017, petitioner filed a motion to stay and abey his

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federal habeas petition pursuant to Rhines v. Weber, 544 U.S. 269 (1995), in order to exhaust

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state court remedies on claims One, Two, Three, and Five. ECF No. 16. Due to the

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overwhelming demands on the court’s docket, this motion cannot be adjudicated immediately.

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However, petitioner is not required to await resolution of the pending motion before returning to

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state court to properly exhaust his state court remedies. In the event that petitioner exhausts any

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claims in the California Supreme Court prior to this court’s resolution of the pending motion,

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petitioner is advised to file a notice of exhaustion in this court.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Respondent is hereby directed to file an opposition or a notice of non-opposition to

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petitioner’s stay and abeyance motion within twenty-one days from the date of this order;
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2. Petitioner’s reply, if any, is due seven days thereafter;

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3. If petitioner exhausts any claims in the California Supreme Court prior to this court’s

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resolution of the pending motion, petitioner shall file a notice of exhaustion in this court.

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DATED: January 17, 2017

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