Wagner v. Clark

Filing 7

ORDER DISMISSING UNEXHAUSTED CLAIMS AND SETTING BRIEFING SCHEDULE ON REMAINING CLAIM (SI, COURT STAFF) (Filed on 12/6/2010)

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Wagner v. Clark Doc. 7 1 2 3 4 5 6 7 8 9 10 11 United States District Court For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA DAVID JOHN WAGNER, JR., Petitioner, v. KEN CLARK, warden, Respondent. / No. C 09-4662 SI (pr) ORDER DISMISSING UNEXHAUSTED CLAIMS AND SETTING BRIEFING SCHEDULE ON REMAINING CLAIM David John Wagner, Jr., filed this pro se action for a writ of habeas corpus pursuant to 28 U.S.C. 2254. The court reviewed the petition, found that it stated three cognizable claims, and ordered respondent to show cause why the petition should not be granted. Respondent then moved to dismiss the petition, arguing that state judicial remedies had not been exhausted for Claims 2 and 3. Petitioner conceded non-exhaustion as to Claims 2 and 3, and chose to amend the petition to delete the unexhausted claims and proceed with just Claim 1, as to which state judicial remedies had been exhausted. See Opposition, p. 2. He also filed an amended petition that deleted the two unexhausted claims and presented just his one exhausted claim. Accordingly, respondent's motion to dismiss is GRANTED (docket # 4), the unexhausted Claims 2 and 3 are dismissed, and the action will proceed with just the claim in the amended petition, i.e., the claim for ineffective assistance of counsel. The court now sets the following briefing schedule on the amended petition: 1. Respondent must file and serve upon petitioner, on or before January 14, 2011, an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued. Respondent must file with the Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 answer a copy of all portions of the court proceedings that have been previously transcribed and that are relevant to a determination of the issues presented by the petition. 2. If petitioner wishes to respond to the answer, he must do so by filing a traverse with the court and serving it on respondent's counsel on or before February 18, 2011. IT IS SO ORDERED. DATED: December 6, 2010 SUSAN ILLSTON United States District Judge 2

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