Opinion
NO. CIV. S-02-2758 LKK/JFM P.
November 9, 2010
ORDER
This court granted petitioner's habeas petition on September 17, 2010, and gave the respondent "a period of thirty days in which to elect to retry petitioner or to resentence him." Order, ECF No. 35. Respondent filed a Request from/Request for Modification of the writ order on October 13, 2010. ECF No. 37. In that request, respondent sought clarification on whether he could comply with the order by electing to resentence petitioner within thirty days or whether the writ order required him to actually resentence petitioner in that time. Respondent indicated in his request that he had elected to resentence petitioner, and that he "has been diligently seeking to resentence Petitioner by October, 17, 2010. However, actual resentencing does not appear possible by October 17, 2010" because petitioner is being held outside the State of California. Respondent indicated that the resentencing could be completed by December 2, 2010.
This court issued an order on October 15, 2010 directing petitioner to file an opposition or statement of non-opposition to respondent's request within seven (7) days. Petitioner has not filed an opposition or statement of non-opposition to the request.
Accordingly, the court now clarifies its September 17, 2010 order (ECF No. 35) as follows: Respondent may comply with the grant of the writ by electing, within thirty (30) days of the September 17, 2010 order, to resentence petitioner, and by ensuring that by December 2, 1010 petitioner is returned to California for a sentencing as of that date, including appointment of counsel. Petitioner is not precluded from seeking a further continuance in state court.
IT IS SO ORDERED.
DATED: November 8, 2010.