Opinion
No. CIV S-06-0410 DFL GGH P.
May 2, 2007
ORDER
Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed objections to the Findings and Recommendations of the undersigned, filed on April 4, 2007, recommending dismissal of the application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, for failure to exhaust state court remedies. Petitioner in his objections avers that he made an error in stating in the original petition that his claims were pending in the state supreme court; he attaches a proposed amended petition with an exhibit appended thereto that demonstrates that his petition for review was denied on March 16, 2005. The court will, on this showing, vacate the findings and recommendations and permit petitioner to proceed on the amended habeas petition.
Since petitioner may be entitled to the requested relief if the claimed violation of constitutional rights is proved, respondents will be served with the petition, but shall not file a response at the present time.
In light of the length of petitioner's sentence, the court has determined that the interests of justice require appointment of counsel. See 18 U.S.C. § 3006A(a)(2)(B); see also Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).
Accordingly, IT IS HEREBY ORDERED that:
Good cause appearing, IT IS HEREBY ORDERED that:
1. The court hereby vacates the Findings and Recommendations, filed on April 4, 2007;
2. The Clerk of the Court is directed to note in the court's docket that this matter proceeds on the amended petition attached to the objections, filed on April 23, 2007; the Clerk is also directed to modify the name of respondent in the court's docket of this matter to Michael S. Evans, Warden;
3. The Federal Defender is appointed to represent petitioner;
4. Within thirty days of this order, the parties shall file a joint scheduling statement which addresses the timing and order of the following matters:
a. The number of days petitioner's counsel estimates it will take to file either:
1. A statement indicating petitioner will stand on the existing petition, and supplemental memorandum of points and authorities, if any;
2. An amended petition which will proceed on exhausted claims only; or
3. An amended petition which identifies both exhausted and unexhausted claims, demonstrates good cause for having failed to exhaust state court remedies as to any claims, and any intention to pursue unexhausted claims, after which the court may recommend that the proceedings be held in abeyance while petitioner exhausts any new claims in state court.
b. Discovery and investigations;
c. Anticipated motions;
d. The need for and timing of an evidentiary hearing;
e. Enumeration and resolution of unexhausted claims; and
f. Possible future amendments to the pleadings.
Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528 (2005).
Counsel are reminded of the importance of timely filing a joint scheduling statement. Failure to do so may result in sanctions.
5. The Clerk of the Court shall serve a copy of this order on Michael Patrick Farrell, Senior Assistant Attorney General, and David Porter, Assistant Federal Defender.