Carter v. Asuncion, 16-cv-07167-JD. (2018)
Court: District Court, N.D. California
Number: infdco20180119633
Visitors: 4
Filed: Jan. 18, 2018
Latest Update: Jan. 18, 2018
Summary: ORDER GRANTING EXTENSION Re: Dkt. No. 18 JAMES DONATO , District Judge . GOOD CAUSE APPEARING, it is hereby ordered that respondent's request for an extension of time (Docket No. 18) is GRANTED. Respondent shall file the briefing by February 17, 2018. Petitioner is again reminded that he must file the supplemental briefing as discussed in the October 26, 2017, Order. Plaintiff must address if the case is timely and if this is a mixed petition and found to be timely, if he seeks a stay
Summary: ORDER GRANTING EXTENSION Re: Dkt. No. 18 JAMES DONATO , District Judge . GOOD CAUSE APPEARING, it is hereby ordered that respondent's request for an extension of time (Docket No. 18) is GRANTED. Respondent shall file the briefing by February 17, 2018. Petitioner is again reminded that he must file the supplemental briefing as discussed in the October 26, 2017, Order. Plaintiff must address if the case is timely and if this is a mixed petition and found to be timely, if he seeks a stay o..
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ORDER GRANTING EXTENSION
Re: Dkt. No. 18
JAMES DONATO, District Judge.
GOOD CAUSE APPEARING, it is hereby ordered that respondent's request for an extension of time (Docket No. 18) is GRANTED. Respondent shall file the briefing by February 17, 2018. Petitioner is again reminded that he must file the supplemental briefing as discussed in the October 26, 2017, Order. Plaintiff must address if the case is timely and if this is a mixed petition and found to be timely, if he seeks a stay or to proceed with the exhausted claims.1
IT IS SO ORDERED.
FootNotes
1. The general rule is that a federal district court must dismiss a federal habeas petition containing any claim for which state remedies have not been exhausted. See Rose v. Lundy, 455 U.S. 509, 522 (1982). When faced with a post-AEDPA mixed petition, the Court must sua sponte inform the habeas petitioner of the mixed petition deficiency and provide him an opportunity to amend the mixed petition by striking unexhausted claims as an alternative to the Court dismissing the petition. Jefferson v. Budge, 419 F.3d 1013, 1016 (9th Cir. 2005) (citing Rhines v. Weber, 544 U.S. 269, 277 (2005)) (court's erroneous dismissal of mixed petition entitled petitioner to equitable tolling of one-year AEDPA statute of limitations from the date the first habeas petition was dismissed until the date the second habeas petition was filed). Petitioner may also seek to stay the petition while he exhausts the remaining claims.
Source: Leagle
