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Leonard v. Ahlin

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


November 23, 2010

HARVEY MACK LEONARD, PETITIONER,
v.
PAM AHLIN, ET AL., RESPONDENTS.

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

ORDER

Petitioner is civilly committed to a state hospital pursuant to the Sexually Violent Predators Act (SVPA), Cal. Welf. & Inst. Code § 6600, et seq., proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In a prior order, filed on August 16, 2010, the court, noting that of the three claims he raises with respect to his 2008 Placer County judgment, he claimed as to his first ground (due process violation claim) that it had been exhausted "in part," and as to his third (ineffective assistance of trial and appellate counsel claims) that those claims had not been presented to the California Supreme Court [i.e, were unexhausted]. Petitioner was presented with three alternatives upon which he could elect to proceed. Id. at 2-4.

Finding, however, that petitioner's response, apparently intended to be a motion to stay pursuant to Rhines v. Weber, 544 U.S. 269, 277-78, 125 S.Ct. 1528, 1535 (2005), was vague, failing to identify precisely what claims or portions of claims remained unexhausted, what potential merit there could be to any such claim, and what good cause might exist to excuse the delay, petitioner, in an order filed on October 8, 2010, was granted a further opportunity to respond more fully. Petitioner was also directed to make clear what portions of the unexhausted claims are currently pending before the state supreme court.

Petitioner has now filed a motion to stay to which he has appended, inter alia, a copy of what appears to be a habeas petition he filed before the California State Supreme Court on September 2, 2010. The undersigned intends to consider respondent's response to the motion before adjudicating the request for a stay of the petition.

Accordingly, IT IS HEREBY ORDERED:

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 October 21, 2010 (docket # 8), within twenty-one days.

20101123

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