Free Order - District Court of California - California

Case 3:07-cv-02315-J-JMA

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Filed 05/30/2008

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On December 10, 2007, Petitioner filed a Petition for Writ of Habeas Corpus in this Court. [Doc. No. 1.] On December 18, v. F.B. HAWS(Warden), Respondent. STUART S. PRESSLY, Petitioner, ) ) ) ) ) ) ) ) ) ) ) Case No. 07-CV-2315-J (JMA) ORDER REQUIRING RESPONSE TO PETITIONER'S MOTION TO STAY PROCEEDINGS PENDING EXHAUSTION OF STATE COURT REMEDIES UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

2007, the Court issued an Order requiring a response from Respondent. [Doc. No. 3.] On May 6, 2008, Respondent filed an On May 21, 2008 (nunc

Answer to the Petition.

[Doc. No. 11.]

pro tunc to May 19, 2008), Petitioner filed a Motion to stay these proceedings while he exhausts new claims raised in state habeas corpus proceedings ("State Petition"). [Doc. no. 13]

The State Petition appears to contain the following claims which are not currently raised in Petitioner's federal Petition: (1) that there was insufficient evidence of first degree

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Case 3:07-cv-02315-J-JMA

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Filed 05/30/2008

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (5) (4) (3) (2)

burglary and of a prior serious felony; that trial counsel was constitutionally ineffective for failing to object to Petitioner' shackling during trial; that the trial court improperly allowed reference to irrelevant evidence that was unfairly prejudicial; that the judge, and not the jury, made findings of fact that enhanced Petitioner's sentence; and that Petitioner's prior federal convictions were improperly counted. (State Petition at 3-7.) The Motion requests that the Court stay

these proceedings while Petitioner exhausts state remedies as to these additional claims and then permit Petitioner to amend the Petition to include them. Accordingly, IT IS HEREBY ORDERED that the deadline for filing of Petitioner's Traverse set forth in the Court's April 22, 2008 Order [doc. no. 8] is hereby VACATED. Respondent shall

file a response to Petitioner's Motion on or before July 7, 2008. Petitioner shall file a reply on or before August 18, 2008. his reply, Petitioner shall address whether his request for a stay meets the requirements set forth in Rhines v. Weber, 544 U.S. 269 (2005). IT IS SO ORDERED. DATED: May 30, 2008 Jan M. Adler U.S. Magistrate Judge In

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