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Flannery v. Walker

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


June 1, 2010

ORVAL D. FLANNERY, PETITIONER,
v.
JAMES WALKER, WARDEN, RESPONDENT.

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

ORDER

Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1 Petitioner has paid the filing fee.

Since petitioner may be entitled to relief if the claimed violation of constitutional rights is proved, respondent will be directed to file a response as set forth below.

Petitioner raises three grounds in challenging his 2005 Amador County Superior Court conviction of petty theft with a prior (Cal. Penal Code § 666) and under the three-strikes law (Cal. Penal Code § 667.5) for which he was sentenced to an indeterminate term of 25 years to life. Petition, pp. 1-7. Of the three grounds raised, petitioner alleges that ground three is unexhausted, and he brings a motion for the petition to be stayed pending the state court exhaustion of the unexhausted ground. See Motion to Stay (docket # 2). The court intends to consider respondent's response to the motion before adjudicating the request for a stay of the petition.

Accordingly, IT IS ORDERED that:

1. The Clerk of the Court is directed to serve the petition and the motion to stay upon respondent; and

2. Respondent is directed to review the petition and the pending motion to stay and to file a response to the motion to stay, filed on April 14, 2010 (docket # 2), within twenty-one days.


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