King v. McEwen

Filing 16

ORDER GRANTING MOTION TO DISMISS UNEXHAUSTED CLAIMS; ORDER TO SHOW CAUSE ON EXHAUSTED CLAIM. Habeas Answer or Dispositive Motion due by 9/18/2013. Signed by Judge Thelton E. Henderson on 07/17/2013. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 7/18/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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KLINTON MICHAEL KING,

United States District Court
For the Northern District of California

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No. C-12-5140 TEH (PR)

Petitioner,

ORDER GRANTING MOTION TO
DISMISS UNEXHAUSTED CLAIMS;
ORDER TO SHOW CAUSE ON
EXHAUSTED CLAIM

v.
L.S. McEWEN, Warden,

Doc. #12
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Respondent.

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/

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On October 3, 2012, Petitioner filed this pro se Petition

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for a Writ of Habeas Corpus under 28 U.S.C. § 2254.

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2012, the Court issued an order for Respondent to show cause (OSC)

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why a writ of habeas corpus should not be granted on three of the

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claims asserted in the Petition.

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indicated that, in lieu of an answer, Respondent may file a motion

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to dismiss on procedural grounds and, if Respondent filed such a

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motion, Petitioner had thirty days in which to file an opposition.

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Doc. #4 at 4.

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Doc. #4.

On November 6,

In the OSC, the Court

On April 8, 2013, Respondent filed a motion to dismiss the

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petition for failure to exhaust state court remedies, arguing that

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only one of the claims the Court had found to be cognizable in its

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OSC had been exhausted.

Respondent indicated that the unexhausted

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claim alleged a violation of the ex post facto clause regarding

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Petitioner’s sentencing.

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opposition to the motion to dismiss, Petitioner filed a second

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motion for appointment of counsel stating that he did not know how

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to oppose Respondent’s motion.

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Court denied the motion for appointment of counsel and explained to

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Petitioner that he could oppose Respondent’s motion if his claims

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were exhausted and, if claims were unexhausted, he could request a

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stay of his petition while he exhausted them in state court, or he

On May 22, 2013, instead of filing an

Doc. #13.

On June 13, 2013, the

United States District Court
For the Northern District of California

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could inform the Court that he wished to dismiss his unexhausted

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claims and proceed only on the ones that were exhausted.

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Doc. #14.

On July 11, 2013, Petitioner filed a letter with the Court

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indicating that he wished to dismiss his unexhausted claims and

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proceed with his exhausted claim.

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the state court record submitted by Respondent with his motion to

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dismiss and is satisfied that it reflects that only Petitioner’s ex

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post facto claim was brought to the state courts.

Doc. #15.

The Court has examined

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For the foregoing reasons and for good cause shown,

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1.

Respondent’s motion to dismiss is GRANTED.

Doc. #12.

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The unexhausted claims in the petition are dismissed.

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exhausted claim based on a violation of the ex post facto clause

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shall proceed.

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2.

Petitioner’s

Respondent shall file with the Court and serve on

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Petitioner, within sixty-three (63) days of the issuance of this

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Order, an Answer conforming in all respects to Rule 5 of the Rules

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Governing Section 2254 Cases, showing cause why a writ of habeas

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corpus should not be granted on the ex post facto claim.

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Respondent

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shall file with the Answer and serve on Petitioner a copy of all

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portions of the state trial record that have been transcribed

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previously and that are relevant to a determination of the issues

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presented by the Petition.

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If Petitioner wishes to respond to the Answer, he shall do

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so by filing a Traverse with the Court and serving it on Respondent

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within twenty-eight (28) days of his receipt of the Answer.

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3.

Petitioner is reminded that all communications with

the Court must be served on Respondent by mailing a true copy of the

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United States District Court
For the Northern District of California

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document to Respondent’s counsel, Pamela K. Critchfield, California

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State Attorney General’s Office, 455 Golden Gate Avenue, Suite

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11000, San Francisco, CA 94102-7004.

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Court and Respondent informed of any change of address.

Petitioner also must keep the

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IT IS SO ORDERED.

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DATED

07/17/2013
THELTON E. HENDERSON
United States District Judge

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G:\PRO-SE\TEH\HC.12\King 12-5140-Dis.Serve Exh Claim.wpd

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