Opinion
No. CIV S-07-1900 MCE KJM P.
January 9, 2008
ORDER
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 9, 2007, the court recommended that the petition be dismissed because petitioner had not exhausted his state remedies. On October 19, 2007, petitioner submitted information showing that the California Supreme Court has denied a petition for review, which was pending when petitioner first filed his federal habeas. Accordingly, the findings and recommendations of October 9, 2007 will be vacated.
Since petitioner may be entitled to relief if the claimed violation of constitutional rights is proved, respondents will be directed to file a response to petitioner's habeas petition.
In accordance with the above, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed October 9, 2007 are vacated;
2. Respondents are directed to file a response to petitioner's habeas petition within sixty days from the date of this order.See Rule 4, Fed.R. Governing § 2254 Cases. An answer shall be accompanied by all transcripts and other documents relevant to the issues presented in the petition. See Rule 5, Fed.R. Governing § 2254 Cases;
3. If the response to the habeas petition is an answer, petitioner's reply, if any, shall be filed and served within thirty days after service of the answer;
4. If the response to the habeas petition is a motion, petitioner's opposition or statement of non-opposition to the motion shall be filed and served within thirty days after service of the motion, and respondents' reply, if any, shall be filed and served within fifteen days thereafter; and
5. The Clerk of the Court shall serve a copy of this order together with a copy of the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on Michael Patrick Farrell, Senior Assistant Attorney General.