Salcido v. Wong

Filing 54

ORDER REGARDING PROCEDURAL MATTERS RELATED TO THE MIXED FINALIZED PETITION. Signed by Judge Maxine M. Chesney on March 11, 2013. (mmcsec, COURT STAFF) (Filed on 3/11/2013)

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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 09-0586 MMC

RAMON BOJORQUEZ SALCIDO,

v.

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

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 (Doc. 41).
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 30 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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claims to the state court. See Rhines v. Weber, 544 U.S. 269, 273-78 (2005) (affirming the
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[Proposed] Order Regarding Procedural Matters Related To The Mixed Finalized Petition (Doc. 41)

Salcido v. Chappell - C 09-0586 MMC

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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.

March 11
DATED: __________________, 2013.

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____________________________________
MAXINE M. CHESNEY
United States District Judge

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[Proposed] Order Regarding Procedural Matters Related To The Mixed Finalized Petition (Doc. 41)

Salcido v. Chappell - C 09-0586 MMC