Opinion
No. CIV S-04-0235-LKK-CMK-P.
February 9, 2006
ORDER
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court are petitioner's motions filed on July 27, 2005 (Doc. 37), and December 1, 2005 (Doc. 38).
This habeas petition was filed on February 2, 2004. On March 25, 2004, respondents filed an answer to the petition. In their answer, respondents concede that the four claims raised in the petition are exhausted in that petitioner has presented his claims to the state court. Respondents also indicate, however, that an appeal of petitioner's judgment and sentence was pending as of the time the answer was filed. On March 29, 2005, the court stayed the instant federal action pending resolution by the state court of petitioner's appeal. The court administratively closed this case and directed petitioner to file a motion to lift the stay within 20 days of completion of state court proceedings.
On July 27, 2005, petitioner filed a document entitled "Motion to Lift Stay on Habeas Corpus." On December 1, 2005, petitioner filed a document entitled "Motion for Relief from Judgment Pursuant to Fed. Rule of Civil Procedure 60(b)." The court construes both motions, taken together, as a motion to lift the stay pursuant to the March 29, 2005, order. Attached to the July 27, 2005, motion is a letter from petitioner's state court counsel informing petitioner that his appeal had been denied on April 20, 2004, and that counsel would not be pursuing the matter further. Attached to the December 1, 2005, motion is a copy of the state court remittitur issued on June 22, 2004, upon denial of petitioner's appeal. Petitioner also attaches the cover page of a petition for writ of habeas corpus filed in the California Supreme Court on October 21, 2004.
Based on the foregoing, it appears that petitioner's claims are now pending before the California Supreme Court. Petitioner has not indicated that the California Supreme Court has resolved his case. Therefore, it is still not appropriate to lift the stay.
Petitioner is reminded of his obligation pursuant to the March 29, 2005, order to file a motion to lift the stay within 20 days of completion of proceedings in the California Supreme Court. Petitioner should attach a copy of the California Supreme Court's order to any such motion.
Accordingly, IT IS HEREBY ORDERED that petitioner's documents filed on July 27, 2005 (Doc. 37), and December 1, 2005 (Doc. 38), are construed as a motion to lift the stay and, so construed, the motion is denied.