The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DISCHARGING ORDER TO SHOW
CAUSE (DOC. 5)
ORDER GRANTING PETITIONER'S MOTION TO AMEND THE PETITION
TO WITHDRAW UNEXHAUSTED CLAIM
CONCERNING INEFFECTIVE ASSISTANCE
OF COUNSEL (DOC. 6)
ORDER REQUIRING RESPONDENT TO FILE A RESPONSE TO PETITIONER'S CLAIMS CONCERNING INSTRUCTIONAL ERROR AND THE INSUFFICIENCY OF THE EVIDENCE TO SUPPORT HIS CONVICTION ORDER SETTING A BRIEFING SCHEDULE ORDER DIRECTING THE CLERK TO SERVE DOCUMENTS ON THE ATTORNEY GENERAL
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 302 and 303. Pending before the Court is Petitioner's response to the order to show cause that issued on February 11, 2011.
I. Discharge of the Order to Show Cause On February 11, 2011, the Court directed Petitioner to show cause why the petition should not be dismissed as a mixed petition containing both exhausted claims and claims as to which Petitioner's state court remedies had not been exhausted.
Petitioner responded to the order to show cause on February 25, 2011.
Accordingly, the order to show cause will be discharged.
II. Amendment of Petition to Withdraw Unexhausted Claim Petitioner alleges three claims in the petition:
1) appellate counsel was ineffective for failing to raise on appeal the insufficiency of the evidence to support Petitioner's convictions; 2) an erroneous jury instruction concerning motive, which permitted consideration of unemployment and poverty as evidence tending to show guilt, violated his rights to due process of law and a fair trial in violation of the Fifth, Sixth, and Fourteenth Amendments; and 3) the evidence was insufficient to support his convictions, and thus Petitioner suffered a violation of due process of law. (Pet. 4-5.)
In his response to the order to show cause, Petitioner stated that his claim concerning the allegedly ineffective assistance of counsel was unexhausted and moved to amend the petition to withdraw the claim so that the other claims, which Petitioner stated were properly exhausted, could be properly reviewed in this proceeding.
Petitioner's motion to amend the petition to withdraw the claim concerning the allegedly ineffective assistance of counsel will be granted, and the action will proceed on Petitioner's remaining claims.
III. Response to the Petition
With respect to Petitioner's claims concerning the insufficiency of the evidence and instructional error, the Court has conducted a preliminary review of the petition. It is not clear from the face of the petition whether Petitioner is entitled to relief. 28 U.S.C. § 2243.
Accordingly, Respondent will be directed to respond ...