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Cromwell v. Prosper

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


December 17, 2009

LANCE ARMAN CROMWELL, PETITIONER,
v.
K. PROSPER, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

By Order, filed on November 13, 2009 (docket # 7), petitioner was ordered to show cause, within 21 days, why the stay in this habeas petition should not be lifted. The court noted therein that petitioner pro se had filed a habeas petition, pursuant to 28 U.S.C. § 2254, on November 1, 2006, and that, by Order, filed on February 7, 2007, the petition was stayed pending exhaustion of petitioner's fourth ground for relief. In that Order (docket # 6), petitioner had been directed to inform the court of the state supreme court's decision within 30 days of a decision being rendered, after which the matter was to proceed. The court observed in the show cause order that it had been more than two and one-half years with no further word from petitioner.

In his timely response, petitioner asks that the stay not be lifted because the California Supreme Court has yet to return a decision as to the fourth ground of relief. In the Findings and Recommendations, filed in December 4, 2006 (docket # 5) (adopted by the Order at docket # 6), the court had noted that petitioner had already begun the process of exhausting his fourth claim at that time. Docket # 5, p. 2. In his current show cause response, petitioner states that he has written to the state supreme court to request the current status of his writ petition and states that he will inform the court as soon as he receives a response. The court will find that petitioner has discharged the show cause order, and will not lift the stay at this time. However, petitioner must inform the court, within 21 days, whether he has received a response to his inquiry from the California Supreme Court; if so, he must inform the court of the status of his state court petition; if he has received no response, the stay in this matter will be lifted and the petition will be served.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner has discharged the show cause order, filed on November 13, 2009 (docket # 7), by his timely response (docket # 8);

2. Petitioner must inform the court, within 21 days, whether he has received a response to his inquiry from the California Supreme Court and, if so, he must inform the court of the status of his state court petition; if no response is received, the petitioner must so inform the court within the same time period; and

3. If no response is forthcoming from the state supreme court, the court may lift the stay and serve the petition.

20091217

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