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Weston v. Cate

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


November 6, 2008

CHASE JASON WESTON, PETITIONER,
v.
MATTHEW CATE, ET AL., RESPONDENTS.

ORDER

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 together with a motion for stay and abeyance. Petitioner has raised two claims in his petition, one exhausted and one unexhausted.

By order filed September 22, 2008, respondents were directed to file, within twenty-one days, a response to petitioner's motion for stay and abeyance. On October 10, 2008, respondents filed a response to the motion. Therein, respondents expressly waive the exhaustion requirement for the unexhausted claim and indicate an intention to brief the merits of both of petitioner's claims in this court. Respondents contend that this waiver moots petitioner's motion for stay and abeyance, and they request thirty days to file an answer on the merits of both claims raised in petitioner's habeas corpus petition.

After review of the record herein, and good cause appearing, IT IS HEREBY ORDERED that:

1. In view of respondents' waiver of the exhaustion requirement for the unexhausted claim raised in petitioner's August 29, 2008 petition for writ of habeas corpus, petitioner's August 29, 2008 motion for stay and abeyance is moot and is denied;

2. Respondents are directed to file an answer to the petition within thirty days from the date of this order. See Rule 4, Rules Governing Section 2254 Cases. Respondents 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 respondents' answer is filed.

20081106

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