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Phillips v. Ayers

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


March 10, 2010

JOHN OSCAR PHILLIPS, PETITIONER,
v.
ROBERT AYERS, JR., ET AL., RESPONDENTS.

ORDER

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the court is petitioner's July 8, 2009 letter, which the court has construed as a motion for a stay and abeyance, and petitioner's second amended petition, filed on August 17, 2009.

In his motion for a stay and abeyance of this action, petitioner requests thirty-days to return to the California Supreme Court to exhaust his ineffective assistance of counsel claim. In his second amended petition, filed a little more than a month later, petitioner indicates that on August 12, 2009, the California Supreme Court denied habeas relief on all of his claims. Thus, it appears from the latter filing that petitioner has now exhausted his state court remedies with respect to all of the claims presented in his federal habeas petition and that his motion for a stay and abeyance has been rendered moot.

Since petitioner may be entitled to relief if the claimed violation of constitutional rights is proved, respondents will be directed to file a response to petitioner's second amended habeas petition.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Petitioner's July 8, 2009 motion for a stay and abeyance (Doc. No. 25) is denied as moot;

2. Respondents are directed to file a response to petitioner's second amended habeas petition within sixty days from the date of this order. See Rule 4, Fed. R. Governing § 2254 Cases. An answer shall be accompanied by all transcripts and other documents relevant to the issues presented in the petition. See Rule 5, Fed. R. Governing § 2254 Cases;

3. If the response to the second amended habeas petition is an answer, petitioner's reply, if any, shall be filed and served within thirty days after service of the answer;

4. If the response to the second amended habeas petition is a motion, petitioner's opposition or statement of non-opposition to the motion shall be filed and served within thirty days after service of the motion, and respondents' reply, if any, shall be filed and served within fourteen days thereafter; and

5. The Clerk of the Court shall serve a copy of this order and a copy of the second amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. No. 26) on Michael Patrick Farrell, Senior Assistant Attorney General.

20100310

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