Hoyos v. Wong

Filing 72

ORDER: Denying (Doc. 61 ) Respondent's Motion to Dismiss For Failure to Exhaust; Granting Petitioner's Motion to Stay Federal Petition Under Kelly v. Small; and Setting Deadlines For Withdrawal of Unexhausted Claim Under Kelly and For Commencement of State Exhaustion Proceedings. The Court Denies Respondent's Motion to Dismiss, Grants Petitioner's Motion for Stay and Abeyance, and Sets deadlines as follows: the court grants Petitioner a thirty (30) day period i n which to commence litigation on the unexhausted claim in state court. Petitioner shall present Claim 14 to the state court within thirty (30) days of the date this Order is stamped "Filed," and file proof of that submission in this Court. Thereafter, Petitioner shall file a brief report with this Court every ninety (90) days informing the Court of the status of the state court petition. Finally, Petitioner shall file his Second Amended Petition in this case within thirty (30) days of the state court's resolution of his state habeas petition. If Petitioner does not file an Amended Petition within this time frame, the stay and abeyance shall be lifted, and the matter shall proceed accordingly. During the state court proceedin gs, all proceedings on the federal petition will be stayed. This will allow the California Supreme Court to complete the litigation of the state habeas petition before the substantive litigation on the federal habeas petition proceeds in this Court. Signed by Judge M. James Lorenz on 1/4/2011. (All non-registered users served via U.S. Mail Service) (srm)