Parker v. Small et al

Filing 15

ORDER REQUESTING BRIEFING RE PETITIONER'S REQUEST FOR STAY AND ABEYANCE AND GRANTING EXTENSION FOR PETITIONER'S TRAVERSE by Judge Alsup granting in part and denying in part 13 Ex Parte Application ; granting in part and denying in part 14 Ex Parte Application (whalc2, COURT STAFF) (Filed on 3/15/2010)

1 2 3 4 5 6 7 8 9 10 BRIAN LEE PARKER, Petitioner, v. LARRY SMALL, Respondent. / ORDER REQUESTING BRIEFING RE PETITIONER'S REQUEST FOR STAY AND ABEYANCE AND GRANTING EXTENSION FOR PETITIONER'S TRAVERSE No. C 09-03989 WHA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court

11
For the Northern District of California

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Petitioner seeks leave to stay and abet the instant action so that he can exhaust certain unexhausted claims in the California Supreme Court. Under AEDPA, petitioner's one-year deadline to file his federal habeas petition was August 12, 2009. Petitioner filed his habeas petition pro per to meet the deadline, and has since retained counsel, Attorney Bradley S. Sandler . In a declaration attached to petitioner's motion to stay, Attorney Sandler states that respondent opposes a stay. In limited circumstances, a district court has the discretion to stay and hold in abeyance a habeas corpus petition pending exhaustion of state remedies. Rhines v. Webber, 544 U.S. 269, 277­78 (2005). Stay and abeyance is only appropriate when the district court determines there was good cause for petitioner's failure to exhaust his claims first in state court. Petitioner here alleges ineffective assistance of counsel at trial including that defense counsel (1) failed to call a legitimate alibi witness, (2) failed to adequately impeach certain prosecution witnesses, and (3) did not adequately investigate what petitioner characterizes as largely circumstantial evidence against him.

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It would be premature to rule on petitioner's request without first considering respondent's viewpoint. Respondent shall file a response to petitioner's request on or before
NOON ON MARCH 29, 2010.

Petitioner also requests a continuance of the filing date of the traverse in this matter pending disposition of his request for stay and abeyance. Petitioner's traverse is currently due on March 15, 2010. Petitioner argues that it would be more efficient for him to delay filing his traverse until his request for a stay and abeyance is ruled upon. This request is GRANTED. In the event that a stay and abeyance is denied, petitioner's traverse shall be filed within TEN DAYS thereafter.

United States District Court

11
For the Northern District of California

IT IS SO ORDERED.

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Dated: March 15, 2010.

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE