COX v. RACKLEY, 2:13-cv-2356 JAM GGH P. (2014)
Court: District Court, E.D. California
Number: infdco20140423884
Visitors: 32
Filed: Apr. 21, 2014
Latest Update: Apr. 21, 2014
Summary: ORDER GREGORY G. HOLLOWS, Magistrate Judge. Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. 2254. Presently pending before the court is respondent's motion to dismiss, filed January 21, 2014. A review of the petition, as well as the papers in support of and in opposition to the motion indicate that petitioner has a claim of actual innocence which may be an exception to the Lackawanna 1 rule precluding a collateral atta
Summary: ORDER GREGORY G. HOLLOWS, Magistrate Judge. Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. 2254. Presently pending before the court is respondent's motion to dismiss, filed January 21, 2014. A review of the petition, as well as the papers in support of and in opposition to the motion indicate that petitioner has a claim of actual innocence which may be an exception to the Lackawanna 1 rule precluding a collateral attac..
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ORDER
GREGORY G. HOLLOWS, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Presently pending before the court is respondent's motion to dismiss, filed January 21, 2014. A review of the petition, as well as the papers in support of and in opposition to the motion indicate that petitioner has a claim of actual innocence which may be an exception to the Lackawanna1 rule precluding a collateral attack on a prior conviction that was used to enhance a sentence which is currently being served. See West v. Ryan, 652 F.3d 1071, 1081-1082 (9th Cir. 2011) (finding actual innocence may be an exception where petitioner has obtained compelling evidence that he is actually innocent and demonstrates that he could not have uncovered this evidence in a timely manner).
Accordingly, IT IS ORDERED that: Respondent shall file further briefing on the issue raised herein, within fourteen days of this order.
FootNotes
1. Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 121 S.Ct. 1567 (2001).
Source: Leagle
