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Pena v. Martel

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


May 4, 2009

JERRY PENA, PETITIONER,
v.
MICHAEL MARTEL*FN1 , 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. Pending before the court is petitioner's request for a stay and abeyance order (Doc. 21). Also pending is respondent's motion to dismiss (Doc. 16).

Petitioner is requesting this court stay this action and hold his petition in abeyance in order to obtain information to refute the claims of untimeliness raised in the motion to dismiss, and to allow him time to return to the California Supreme Court to exhaust his claims. The court finds it appropriate to consider plaintiff's request at the same time it considers respondent's motion to dismiss.

Therefore, to the extent petitioner needs additional time to respond to the issues raised in the motion to dismiss, the court will construe that as a request for additional time to respond to the motion. So construed, petitioner's request will be granted. As to the merits of his request for a stay and abeyance order, a response will be required from the respondent addressing the issues petitioner raises in his request. Respondent will be directed to respond to petitioner's request to stay this case in their reply to petitioner's response regarding the motion to dismiss.

Accordingly, IT IS HEREBY ORDERED that: 1. Petitioner's request for additional time to respond to the pending motion to dismiss, included in his request for stay-and-abeyance of his petition, is granted;

2. Petitioner shall file a response to the motion to dismiss within 30 days of the date of service of this order; and

3. Respondent is directed to respond to petitioner's stay request in their reply brief relating to the pending motion to dismiss.


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