From Casetext: Smarter Legal Research

Rosales v. Harrison

United States District Court, E.D. California
Feb 28, 2006
No. CIV S-05-0424 LKK PAN P (E.D. Cal. Feb. 28, 2006)

Opinion

No. CIV S-05-0424 LKK PAN P.

February 28, 2006


ORDER


Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 11, 2005, petitioner filed a motion to stay these proceedings pending exhaustion of state remedies as to ground three in his original petition, described as a claim of newly discovered evidence. Petitioner's motion is predicated on his own assertion, with which respondent concurs, that said claim is unexhausted.

After review of the petition for writ of habeas corpus filed herein and review of the petition for writ of habeas corpus filed by petitioner in the California Supreme Court on February 26, 2004, Case No. S122875, and resolved by that Court on February 16, 2005, this court is not persuaded that the claim raised in Ground Three of the federal petition is unexhausted. Accordingly, petitioner's motion for stay will be denied without prejudice and respondent will be directed to answer the petition. This order is without prejudice to respondent's right to raise in the answer, as appropriate, a defense that ground three is unexhausted.

The record reflects that petitioner has presented this claim to the California Supreme Court in a second petition for writ of habeas corpus, Case No. S130812, filed January 20, 2005. The parties are directed to inform the court in writing of the final disposition of said petition not later than twenty days after resolution thereof or, if said petition has been resolved, twenty days from the date of this order.

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

1. Petitioner's April 11, 2005 motion for stay is denied without prejudice;

2. Respondent is directed to file an answer within forty-five days from the date of this order. See Rule 4, Rules Governing Section 2254 Cases. Respondent shall include with the answer any and all transcripts or other documents relevant to the determination of the issues presented in the application. Rule 5, Rules Governing Section 2254 Cases; and

3. Petitioner's traverse, if any, is due on or before thirty days from the date respondent's answer is filed.


Summaries of

Rosales v. Harrison

United States District Court, E.D. California
Feb 28, 2006
No. CIV S-05-0424 LKK PAN P (E.D. Cal. Feb. 28, 2006)
Case details for

Rosales v. Harrison

Case Details

Full title:JOSEPH B. ROSALES, Petitioner, v. C.M. HARRISON, Warden, Respondent

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

Date published: Feb 28, 2006

Citations

No. CIV S-05-0424 LKK PAN P (E.D. Cal. Feb. 28, 2006)