Garcia v. Sandor

Filing 8

ORDER DISMISSING UNEXHAUSTED CLAIM AND SETTING BRIEFING SCHEDULE (Illston, Susan) (Filed on 10/3/2011) (Additional attachment(s) added on 10/3/2011: # 1 Envelope) (tf, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARCELLO GARCIA,

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Petitioner,

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United States District Court
For the Northern District of California

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No. C 09-5369 SI (pr)
ORDER DISMISSING
UNEXHAUSTED CLAIM AND
SETTING BRIEFING SCHEDULE

v.
GARY SANDOR, warden,
Respondent.
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Marcello Garcia filed this pro se action for a writ of habeas corpus pursuant to 28 U.S.C.

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§ 2254. The court ordered respondent to show cause why the petition should not be granted on

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the five claims alleged. Respondent moved to dismiss on the ground that state court remedies

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had not been exhausted for one of the claims. The court granted the motion, finding that state

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court remedies were not exhausted for one of the claims and ordering petitioner to choose how

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to deal with this problem. See Order For Petitioner To Make Election Regarding Unexhausted

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Claim, p. 5. Petitioner thereafter filed a "request to dismiss unexhausted claim and amend to add

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claim" in which he elected to dismiss his unexhausted claim 2 – i.e., that the jury was

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misinstructed on the fear element of forcible sodomy – and wanted to amend to add a claim that

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there was insufficient evidence to support the "findings that the offenses were committed by

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force or duress," Docket # 7, p. 1. Although he provided no argument in support of his newly

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added claim, he states that the claim was presented in his petition for review in the California

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Supreme Court.

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Upon due consideration, petitioner's request to dismiss unexhausted claim and amend to

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add claim is GRANTED. (Docket # 7.) Petitioner's claim 2 – i.e., that the jury was

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misinstructed on the fear element of forcible sodomy – is dismissed. The remaining claims in

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the petition, as well as the newly added claim of insufficient evidence, warrant a response from

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respondent. The court now sets the following briefing schedule:

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1.

Respondent must file and serve, on or before November 4, 2011, an answer

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

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

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of all portions of the court proceedings that have been previously transcribed and that are

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

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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 on or before December 9, 2011.
3.

If respondent wishes to assert a procedural challenge to the amendment that adds

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the insufficient evidence claim, he may file and serve a motion on or before November 4, 2011.

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If respondent files such a motion, petitioner must file and serve his opposition to the motion on

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or before December 9, 2011. Respondent must file and serve any reply brief on or before

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December 23, 2011.

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IT IS SO ORDERED.
DATED: October 3, 2011
SUSAN ILLSTON
United States District Judge

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