Chatman v. Ayers

Filing 28

ORDER REGARDING PROCEDURAL MATTERS RELATED TO THE MIXED FINALIZED PETITION (DOC. 41) re 27 Joint Case Management Statement filed by Robert L. Ayers, Jr.. Signed by Judge William Alsup on 7/23/13. (dt, COURT STAFF) (Filed on 7/23/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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Case No. C 07-0640 WHA

ERIK SANFORD CHATMAN,

Petitioner, DEATH PENALTY CASE
v.

[PROPOSED] ORDER REGARDING
PROCEDURAL MATTERS RELATED TO
THE MIXED FINALIZED PETITION
(DOC. 41)

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KEVIN CHAPPELL, Warden of California
State Prison at San Quentin,
Respondent.

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Based upon the stipulation of the parties, the Court adopts their proposed schedule for
resolving procedural matters related to the mixed finalized petition.
1. Within 30 days of the issuance of this Order, respondent shall file a motion to dismiss

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the mixed petition. See O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Rose v.

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Lundy, 455 U.S. 509, 522 (1982) (holding that for reasons of comity and federalism, district

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courts may not adjudicate mixed petitions).

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2. Within 45 days of the filing of respondent’s motion to dismiss the mixed petition,

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petitioner shall file his response and his motion for a stay so that he may present his unexhausted
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[Proposed] Order Regarding Procedural Matters Related to the Mixed Finalized Petition (Doc. 41) (C 07-0640 WHA)

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claims to the state court. See Rhines v. Weber, 544 U.S. 269, 273-78 (2005) (affirming the

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authority of district courts to stay, rather than dismiss, mixed petitions governed by AEDPA

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deadlines); see also Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002).

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3. Within 14 days of petitioner filing his response to the motion to dismiss and motion for a

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stay, respondent shall file any reply to the response to the motion to dismiss and his response to

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the motion for a stay.

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4. Within 14 days of respondent’s reply/response to the motion for a stay, petitioner shall
file any reply to the response to the motion for a stay.
5. The above motions will be decided on the pleadings.

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IT IS SO ORDERED.
July 23, 2013
DATED: ________________________, 2013.

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____________________________________
WILLIAM H. ALSUP
United States District Judge

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20704304.doc

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[Proposed] Order Regarding Procedural Matters Related to the Mixed Finalized Petition (Doc. 41) (C 07-0640 WHA)

CERTIFICATE OF SERVICE
Case Name:

Chatman v. Chappell, Warden
(Death Penalty Case)

No.

C 07-0640 WHA

I hereby certify that on July 9, 2013, I electronically filed the following documents with the
Clerk of the Court by using the CM/ECF system:
1. JOINT STATEMENT STIPULATING TO A PROPOSED SCHEDULE; and
2. [PROPOSED] ORDER REGARDING PROCEDURAL MATTERS RELATED TO
THE MIXED FINALIZED PETITION (DOC. 41)
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the CM/ECF system.
I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on July 9, 2013, at San Francisco, California.

E. Rios
Declarant
20708918.doc

/s/ E. Rios
Signature