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KENNEDY v. BRAZELTON, 2:14-cv-00510 GEB ACP. (2014)

Court: District Court, E.D. California Number: infdco20140801d01 Visitors: 21
Filed: Jul. 30, 2014
Latest Update: Jul. 30, 2014
Summary: ORDER ALLISON CLAIRE, Magistrate Judge. Petitioner, a state prisoner who is proceeding pro se and in forma pauperis, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. Petitioner raises four grounds to challenge his 2010 conviction and sentence of 75-years-to-life sentence plus ten years for carjacking plus assault with a firearm; assault with a firearm; and second degree robbery while personally discharging a firearm, with two prior strike convictions. Petition at 1;
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ORDER

ALLISON CLAIRE, Magistrate Judge.

Petitioner, a state prisoner who is proceeding pro se and in forma pauperis, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raises four grounds to challenge his 2010 conviction and sentence of 75-years-to-life sentence plus ten years for carjacking plus assault with a firearm; assault with a firearm; and second degree robbery while personally discharging a firearm, with two prior strike convictions. Petition at 1; ECF No. 14, Respondent's Lodged Document No. 3 (Westlaw printout of state court appellate decision). The four grounds include: (1) ineffective assistance of trial counsel for failing to investigate and present a witness regarding third party culpability; (2) prosecutorial misconduct/failure to disclose exculpatory evidence; (3) prosecutorial misconduct by presenting and failing to correct false testimony; (4) trial court error by excluding the defense's third party culpability evidence. Petition, at 5-10. Petitioner specified in his petition that grounds 1, 2 and 3 had not been exhausted. Id. at 12.

Petitioner has now filed a notice of exhaustion of state court remedies of the three previously unexhausted grounds, a copy of the petition he presented to the California Supreme Court and, most recently, a copy of the state Supreme Court's postcard denial of a habeas petition dated July 9, 2014. ECF No. 18 at 9-83; ECF No. 20 at 2. Petitioner states that his state Supreme Court denial moots his request for a stay and the court's review of the pro se petition submitted to that court indicates petitioner has presented the three previously unexhausted claims.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's notice of exhaustion of his previously unexhausted claims (ECF No. 20) renders moot the pending motions for a stay and respondent's motion to dismiss on grounds of unexhaustion, therefore the motions at ECF Nos. 6, 15 and 18 are hereby VACATED;

2. Respondent is directed to file a response to petitioner's habeas petition within sixty days from the date of this order. See Rule 4, 28 U.S.C. foll. § 2254. An answer shall be accompanied by all transcripts and other documents relevant to the issues presented in the petition. See Rule 5, 28 U.S.C. foll. § 2254;

3. If the response to the habeas petition is an answer, petitioner's reply, if any, shall be filed and served within thirty days after service of the answer;

4. If the response to the habeas petition is a motion, petitioner's opposition or statement of non-opposition to the motion shall be filed and served within thirty days after service of the motion, and respondent's reply, if any, shall be filed and served within fourteen days thereafter.

Source:  Leagle

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