The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge Sitting by Designation
Currently before the court are Petitioner Kenneth Lee Martinez' ("Petitioner") "Motion in Opposition to Respondents [sic] Request for an Enlargement of Time . . . and Motion for Judgment by Default" (No. 80) ("Opposition") and "Petitioner's Motion for Emergency Instruction on What Petitioner is Suppose [sic] to do with his [First] and [Second] State Habeas Corpus Exhausted, and Ruling on Petitioners [sic] Motion for Stay and Abeyance. All of Which Have Been Previously Submitted to the Court." (Nos. 76 and 79 (emphasis and brackets in original) "Emergency Motion for Instruction").
Petitioner opposes the Respondent's request for an enlargement of time to file an answer in this case. The Respondent filed the request for enlargement of time on November 21, 2008 (No. 77). After considering the same issues Petitioner raised in his Opposition, this Court issued an order granting the request, in part, on November 26, 2008 (No. 78) and ordered Respondent to file an answer on or before December 5, 2008. Accordingly, Petitioner's motion opposing the enlargement of time is denied as moot.
Petitioner's amended application for a writ of habeas corpus (No. 74) alleges eight claims for relief. At the time Petitioner filed the Emergency Motion for Relief, claims one through seven had been exhausted and Petitioner's eighth claim was pending before the California Supreme Court.*fn1 While the Emergency Motion for Relief was pending, Petitioner's eighth claim also became exhausted.
On December 10, 2008, and subsequent to Petitioner's filing the instant Emergency Motion for Instruction, the California Supreme Court issued an order denying Petitioner's petition for review of People v. Martinez, 83 Cal. Rptr. 3d 738 (Cal. Ct. App. Sept. 23, 2008) (No. C055549), modified by People v. Martinez, No. C055549, 2008 Cal. App. Lexis 1666 (Cal. Ct. App. Oct. 22, 2008). See People v. Martinez, No. S167946, (Cal. Dec. 10, 2008). Thus, Petitioner's amended application for writ of habeas corpus (No. 74) raises no unexhausted claims.
"A petitioner may satisfy the exhaustion requirement in two ways: (1) by providing the highest state court with an opportunity to rule on the merits of the claim . . .; or (2) by showing that at the time the petitioner files the habeas petition in federal court no state remedies are still available to the petitioner and the petitioner had not deliberately by-passed the state remedies." Sherwood v. Tomkins, 716 F.2d 632, 634 n.1 (9th Cir. 1983) (quoting Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir.1982), cert. denied, 463 U.S. 1212 (1983)). Petitioner's amended application meets this requirement because California's highest court was provided with an opportunity to rule on the merits of the claim and denied the petition for review. Accordingly, Petitioner's motion to stay the action (Nos. 23, 49, 64) is moot as Petitioner's amended petition asserts only exhausted claims.
Respondent filed an answer to the amended petition on December 5, 2008 (No. 81) and, as previously ordered (No. 78), Petitioner has up to and until December 26, 2008 to file a traverse, if any. Additionally, the court will allow Petitioner and Respondent to file a supplemental brief that addresses the California Supreme Court's December 10, 2008 order denying the petition for review in case number S167946.
1. Petitioner's opposition to Respondent's request for enlargement of time is DENIED as moot and Petitioner's request for default judgment is DENIED (No. 80);
2. Petitioner's motion to stay the action (Nos. 23, 49, 64) is DENIED as moot;
3. Petitioner's Emergency Motion for Instruction (Nos. 76 and 79) is also ...