IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 4, 2008
JAMES DANIEL GREY, PETITIONER,
JAMES A. YATES, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Arthur Alarcón United States Circuit Judge
On July 1, 2005, Petitioner, James D. Grey, proceeding pro se, filed a Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a). (Doc. 1). On November 3, 2005, Respondent, James A. Yates, filed an Answer to Petitioner's Petition. (Doc. 13). In response, Petitioner filed his Traverse on May 1, 2008. (Doc. 25).
In the Answer, Respondent asserts that "[o]n March 1, 2004, Petitioner filed a Petition for Review in the California Supreme Court (S122928), which was denied on April 14, 2004. (Lod. Doc. B.) . . . By virtue of the California Supreme Court's denial of Petitioner's Petition for Review, Petitioner has exhausted the claims he now raises in this Court." Answer at 2.
However, according to this Court's review of the record, it appears as though Case No. S122928 is a petition for review filed in the California Supreme Court from the California Court of Appeal, Third Appellate District's affirmance of Petitioner's criminal conviction, and not a denial of a petition for a writ of habeas corpus. Further, it also appears that on December 14, 2005, the California Supreme Court denied a petition for a writ of habeas corpus, filed by Petitioner, on procedural grounds, citing "In re Dixon(1953) 41 Cal.2d 756." (Case No. S131133).
Accordingly, Respondent is hereby directed to lodge with the Court a copy of the petition for a writ of habeas corpus filed by Petitioner in the California Supreme Court, Case No. S131133, on or before September 11, 2008.
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