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Antonio N v. Matthew Cate

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


July 13, 2012

ANTONIO N.,
PETITIONER,
v.
MATTHEW CATE, ET.AL., RESPONDENTS.

The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER DIRECTING RESPONDENT TO FILE A RESPONSE TO PETITIONER'S REQUEST TO STAY THE PROCEEDINGS TO EXHAUST CERTAIN CLAIMS IN THE STATE COURTS [Doc. 1]

Petitioner is proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is represented by David Mugridge, Esq.

Petitioner filed the instant petition for writ of habeas corpus on April 10, 2012. In the body of the petition, Petitioner indicates that he has exhausted some, but not all, of the claims raised therein. Petitioner specifically states:

In the present case, Petitioner has exhausted some, but not all, of his state court remedies through the Appeals Process in state court. The claims raised in the instant Petitioner were not contained in the trial record, and therefore could not be raised through direct appeal. Habeas investigation has, as yet, failed to locate crucial witnesses that, it is believed, will corroborate Petitioner's alibi defense. Petitioner filed the instant Petition to preserve his federal deadline, and this Petitioner will be amended if and when the required information becomes available. Petitioner filed a Petition for Writ of Habeas Corpus in the Fresno County Superior Court and will file a petition in the California Supreme Court if relief is not granted at the Superior Court level.

Petitioner is filing the instant Petitioner to meet the timely filing requirement under AEPDA, and will file any subsequent information necessary pending the outcome of the investigation and state proceedings as soon as possible. Petitioner requests this court exercise its discretion and hold this Petitioner in abeyance pending the outcome of the state court petitioner, and the exhaustion of his state court remedies. Rhines v. Weber, 544 U.S. 269, 277-278 (2005).

(Petition, at 11-12.)

The Court directs Respondent to file a response to Petitioner's request to stay and hold the petition in abeyance pending exhaustion in the state courts. Accordingly, it is HEREBY ORDERED that:

1. Within thirty (30) days from the date of service of this order, Respondent shall file a response to Petitioner's request for a stay and abeyance; and

2. Within thirty (30) days from the date Respondent files a response, Petitioner may file a reply.

IT IS SO ORDERED.

20120713

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