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Deandre Cerrone Scott v. Mike Mcdonald

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


February 3, 2011

DEANDRE CERRONE SCOTT, PETITIONER,
v.
MIKE MCDONALD, RESPONDENT.

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

ORDER

Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Therein, petitioner challenges his 2008 conviction for first degree murder on two grounds: 1) trial court error abuse of discretion when jury was given a supplemental "firecracker" instruction after court became aware the jury was deadlocked with a hold-out juror, resulting in a coerced verdict; petitioner appears to combine that claim with one for ineffective assistance of counsel to the extent the issue may be deemed waived by his counsel's actions/omissions; 2) trial court error in giving flight instruction where there was no substantial evidence of flight immediately after commission of crime, or the accusation of a crime having been committed. Petition, pp. 1, 7, 28-53. Pursuant to the order, filed on 10/08/10, respondent filed an answer on 12/06/10. On 1/19/11, petitioner filed a motion for a stay.

Petitioner, instead of filing a traverse/reply, now seeks a stay based on his having filed, in October of 2010, a habeas corpus petition in the state superior court seeking to exhaust five additional claims, which the court will number as 3 through 7; claim 3: insufficient evidence to support conviction/actual innocence; claim 4: prosecutorial misconduct; claim 5: ineffective assistance of trial and appellate counsel; claim 6: prosecution failed to prove every element (intent, malice aforethought, premeditation) to prove first degree murder; claim 7: prejudice by trial court abuse of discretion in permitting jury to hear misstated evidence by prosecution without sua sponte admonition. Motion, pp. 1-2.

Before the court considers the motion, the undersigned will require a response from respondent.

Accordingly, IT IS HEREBY ORDERED that respondent submit a response to petitioner's motion for a stay, pending exhaustion of additional claims in state court, within twenty-eight days.

20110203

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