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Smith v. Wong

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


November 2, 2010

ANTHONY SMITH, JR., PETITIONER,
v.
ROBERT K. WONG, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Judge Honorable Lawrence K. Karlton

UNOPPOSED REQUEST TO ISSUE WRIT OF HABEAS CORPUS; ORDER

Petitioner, ANTHONY SMITH, Jr., by and through his counsel, Assistant Federal Defender David M. Porter, requests this Court issue the order lodged herewith directing the issuance of the writ of habeas corpus in the above-entitled matter.

On August 3, 2007, this Court issued an order adopting the findings and recommendations of the magistrate judge that Mr. Smith's petition for writ of habeas corpus be granted as to the claim of jury coercion. CR #68.*fn1 Judgment was entered the same day. CR #69. Both parties filed appeals. CR ## 70, 72.

On September 8, 2009, the Ninth Circuit Court of Appeals affirmed the judgment of this Court in all respects. 580 F.3d 1071. On November 30, 2009, the Ninth Circuit issued the mandate, which was spread upon the docket of this Court on December 1, 2009. CR #84.

On November 1, 2010, the Supreme Court of the United States denied the Warden's petition for writ of certiorari.*fn2 No. 09-1031.

On November 2, 2010, the undersigned contacted counsel for Respondent, who graciously indicated that he had no objection to this request.

Accordingly, pursuant to 28 U.S.C. § 2243, Mr. Smith requests this Court enter the order lodged herewith issuing the writ of habeas corpus.

Dated: November 2, 2010

Respectfully submitted,

DANIEL J. BRODERICK Federal Defender

DAVID M. PORTER Assistant Federal Defender Attorney for Petitioner ANTHONY SMITH, Jr.

ORDER

Pursuant to the mandate of the United States Court of Appeals for the Ninth Circuit in the case of Anthony Bernard Smith, Jr. v. B. Curry, No. 07-16875, which affirmed this Court's Judgment of August 3, 2007, granting habeas corpus relief as to petitioner's claim of jury coercion, the writ of habeas corpus in the above-captioned case hereby ISSUES.

The conviction of Mr. Smith on Count Four in Superior Court Number 97F07219 is VACATED. Unless the state commences a retrial within forty-five (45) days from the date of this order, the conviction on Count Four shall be DISMISSED and Mr. Smith shall be RELEASED from custody on the sentence imposed on that count.

IT IS SO ORDERED.


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