Lucas v. Ayers

Filing 57

ORDER on Statement of the Parties Regarding Exhaustion. Within 30 days of the issuance of this Order, Petitioner shall file his motion for a stay. Within 14 days of Petitioner filing his motion for a stay, Respondent shall file any opposition to the motion for a stay. Within 14 days of the filing of Respondent's opposition to the motion for a stay, Petitioner shall file any reply in support of the motion for a stay. Signed by Judge Gonzalo P. Curiel on 1/17/17.(dlg)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE SOUTHERN DISTRICT OF CALIFORNIA

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DAVID ALLEN LUCAS,

Petitioner, DEATH PENALTY CASE

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15cv1224 GPC (WVG)

v.

ORDER ON STATEMENT OF THE
PARTIES REGARDING
EXHAUSTION

RON DAVIS, Warden, California
State Prison at San Quentin,
Respondent.

Based upon the stipulation of the parties, the Court finds that the following
claims and/or subclaims in the Petition for Writ of Habeas Corpus filed on
November 22, 2016, are unexhausted: Claims 10.D, 12, 13.B.2, 13.B.5, 13.B.6,
35.M, 50.H, 50.L, 50.M, 52, and 53. The Court takes the parties’ position
statements regarding the exhaustion status of Claims 2.E.7 and 7.E.1 under
submission and will render a decision on the exhaustion status of those claims
concurrent with a decision on the stay and abeyance issue.
In addition, the Court adopts the parties’ proposed schedule for resolving
procedural matters related to the Petition:

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15cv1224 GPC (WVG))

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1.

Within 30 days of the issuance of this Order, Petitioner shall file his

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motion for a stay so that he may present his unexhausted claims to the state court.

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See Rhines v. Weber, 544 U.S. 269, 273-78 (2005) (affirming the authority of

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district courts to stay, rather than dismiss, mixed petitions governed by AEDPA

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deadlines).

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2.

Within 14 days of Petitioner filing his motion for a stay, Respondent

shall file any opposition to the motion for a stay.
3.

Within 14 days of the filing of Respondent’s opposition to the motion

for a stay, Petitioner shall file any reply in support of the motion for a stay.
4.

Unless otherwise ordered by the Court, the above motions will be

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decided on the pleadings.

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IT IS SO ORDERED.

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Dated: January 17, 2017

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15cv1224 GPC (WVG))