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Brodheim v. Cate

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


April 23, 2009

MICHAEL J. BRODHEIM, PETITIONER,
v.
M. CATE, ET AL., RESPONDENTS.

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.*fn1 Pending before the court is petitioner's petition for a writ of habeas corpus (Doc. 1), request for leave to file the petition protectively and for a stay-and-abeyance order (Doc. 2) pending exhaustion of claims in state court. Petitioner filed the instant federal petition while a post-conviction action raising the same claims was still pending in state court. Citing Pace v. DiGuglielmo, 125 S.Ct. 1807 (2005), and Bonner v. Carey, 425 F.3d 1145 (9th Cir. 2005), petitioner states that a protective filing is allowed to preserve the filing date for statute of limitations purposes in the event the state court ultimately determines that his post-conviction action is untimely and, therefore, not "properly filed." He correctly states that, if the state court were to make such a determination, he would not be entitled to statutory tolling of the statute of limitations for the time the post-conviction action was pending in state court.

Before the court rules on petitioner's request for a stay-and-abeyance order pending resolution of the state post-conviction action, petitioner will be required to submit a report on the status of that action. Petitioner is cautioned that failure to comply with this order may result in dismissal of the entire petition for lack of prosecution and failure to comply with court rules and orders. See Local Rule 11-110.

Accordingly, IT IS HEREBY ORDERED that:

1. The Clerk of the Court is directed to update the docket to reflect that petitioner is proceeding pro se; and

2. Petitioner shall file a report on the status of pending state court actions relating to the claims raised in the instant federal petition within 30 days of the date of this order.


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