Maki v. Hartley

Filing 10

ORDER DISMISSING UNEXHAUSTED CLAIM AND SETTING BRIEFING SCHEDULE : Respondent's answer is due 5/27/11, petitioner's optional traverse is due 7/1/11. (SI, COURT STAFF) (Filed on 4/12/2011) (Additional attachment(s) added on 4/12/2011: # 1 Envelope) (tf, COURT STAFF). Modified on 4/13/2011 (ys, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RICHARD TRAVIS MAKI,

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Petitioner,

United States District Court
For the Northern District of California

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No. C 09-5082 SI (pr)
ORDER DISMISSING
UNEXHAUSTED CLAIM AND
SETTING BRIEFING SCHEDULE

v.
JAMES D. HARTLEY, warden,

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Respondent.
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Richard Travis Maki filed this pro se action for a writ of habeas corpus pursuant to 28

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U.S.C. § 2254. The court ordered respondent to show cause why the petition should not be

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granted on three claims of ineffective assistance of counsel. Respondent moved to dismiss on

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the ground that state court remedies had not been exhausted for one of the three claims. The

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court granted the motion, finding that state court remedies were not exhausted for one of the

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claims and ordering petitioner to choose how to deal with this problem no later than January 14,

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2011. See Order For Petitioner To Make Election Regarding Unexhausted Claim, p. 5.

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Petitioner was informed that, if he did not choose one of the available options, the court would

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dismiss the unexhausted claim. Id. Petitioner filed no response to the order and the deadline by

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which to do so has long passed. In light of the foregoing and to move this action toward

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resolution:

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/ / /

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Petitioner's claim that his counsel provided ineffective assistance in that he did not

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call petitioner's son to testify is DISMISSED. The two remaining ineffective assistance of

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counsel claims warrant a response from respondent.

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2.

Respondent must file and serve upon petitioner, on or before May 27, 2011, an

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answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases,

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showing cause why a writ of habeas corpus should not be issued. Respondent must file with the

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answer a copy of all portions of the court proceedings that have been previously transcribed and

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that are relevant to a determination of the issues presented by the petition.

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3.

If petitioner wishes to respond to the answer, he must do so by filing a traverse

with the court and serving it on respondent on or before July 1, 2011.
IT IS SO ORDERED.
DATED: April 12, 2011
SUSAN ILLSTON
United States District Judge

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