McClish v. Evans

Full title: KENNETH W. McCLISH, Petitioner, v. MIKE EVANS, Warden, Respondent

Court: United States District Court, E.D. California

Date published: Oct 29, 2008

No. CIV S-08-1963 MCE GGH P (E.D. Cal. Oct. 29, 2008)

Opinion

No. CIV S-08-1963 MCE GGH P.

October 29, 2008

ORDER

GREGORY HOLLOWS, Magistrate Judge

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. By Findings and Recommendations, filed on 9/11/08, the court recommended dismissal of the petition for non-exhaustion of state court remedies because it was not clear that petitioner had presented his claims to the California Supreme Court. However, in objections (filed somewhat belatedly, even by application of the mailbox rule), petitioner appears to have made at least a colorable showing of state court exhaustion, and the court hereby vacates the recommendation of dismissal for failure to exhaust.

Since petitioner may be entitled to the requested relief if the claimed violation of constitutional rights is proved, respondents will be directed to file a response to petitioner's application.

In accordance with the above, IT IS HEREBY ORDERED that:

1. The Findings and Recommendations, filed on 9/11/08 (# 5) are hereby vacated;

2. Respondents are directed to file a response to petitioner's application within sixty days from the date of this order. See Rule 4, Fed.R. Governing § 2254 Cases. An answer shall be accompanied by any and all transcripts or other documents relevant to the determination of the issues presented in the application. See Rule 5, Fed.R. Governing § 2254 Cases;

3. Petitioner's reply, if any, shall be filed and served within thirty days of service of an answer;

4. If the response to petitioner's application is a motion, petitioner's opposition or statement of non-opposition shall be filed and served within thirty days of service of the motion, and respondents' reply, if any, shall be filed within fifteen days thereafter; and

5. The Clerk of the Court shall serve a copy of this order, the consent/reassignment form contemplated by Appendix A(k) to the Local Rules of this court together with a copy of petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on Michael Patrick Farrell, Senior Assistant Attorney General.