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Clark v. Hedgepeth

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 15, 2008

ERNEST E. CLARK, IV, PETITIONER,
v.
TONY HEDGEPETH, RESPONDENT.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to the consent of the parties, this matter is before the undersigned for all purposes. Pending before the court is respondent's motion to dismiss (Doc. 17). In his motion, respondent argues that this case should be dismissed because the claims have not been exhausted.

Under 28 U.S.C. § 2254(b), the exhaustion of available state remedies is required before the federal court can grant a claim presented in a habeas corpus case. See Rose v. Lundy, 455 U.S. 509 (1982); see also Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003); Hunt v. Pliler, 336 F.3d 839 (9th Cir. 2003). Here, respondent states that all of the claims raised in the instant petition have been presented to the California Supreme Court in case no. S159547, but that the California Supreme Court has not ruled on the case. A review of the California Supreme Court's docket, however, reflects that a decision was rendered denying relief on July 9, 2008.*fn1

Thus, while respondents were correct when they filed their motion to dismiss on May 19, 2008, the claims are now exhausted and this court may grant relief, if appropriate. Respondent's motion will be denied and he will be directed to file an answer on the merits. The answer must comply with Rule 5 of the Federal Rules Governing Section 2254 Cases. Specifically, the answer shall be accompanied by any and all transcripts or other documents relevant to the determination of the issue(s) presented in the petition. See id.

Accordingly, IT IS HEREBY ORDERED that:

1. Respondent's motion to dismiss (Doc. 17) is denied;

2. Respondent is directed to file a response to petitioner's petition within 60 days from the date of service of this order; and

3. Petitioner's traverse or reply shall be filed and served within 30 days of service of respondent's answer.


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