Nesbitt v. Jacquez
Filing
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ORDER signed by Magistrate Judge Gregory G. Hollows on 6/15/11 ORDERING that petitioners request for a stay pending state court exhaustion of a claim of ineffective assistance of counsel, filed docket 45 , has been previously addressed and adjudicated, see docket entries 34 , 39 , 41 , and 43 ; and the hearing date for the motion for a stay, purportedly noticed for hearing before the undersigned on 7/21/11, is hereby VACATED.(Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ROBERT HAYDEN NESBITT, JR.,
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Petitioner,
No. CIV S-09-2821 GEB GGH P
vs.
FRANCISCO JACQUEZ, Warden,
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Respondent.
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ORDER
/
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On January 28, 2011, the undersigned set the briefing schedule and denied
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petitioner’s motion for discovery and denied petitioner leave to amend his petition to add a claim
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of ineffective assistance of counsel. On February 8, 2011, petitioner filed a request for
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reconsideration to the district judge of the two rulings; by Order, filed on March 16, 2011, the
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Jan. 28, 2011, Order was affirmed. By Order, filed on May 10, 2011,1 petitioner’s motion for the
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court to certify the March 16, 2011 Order for interlocutory review was denied as well as was
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“petitioner’s motion for a stay pending state court exhaustion of an ineffective assistance of
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counsel claim,” noting that leave to proceed upon such a claim had been previously denied.
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Nevertheless, petitioner filed a motion stay pending exhaustion of an ineffective
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The Findings and Recommendations, filed on April 6, 2011, were adopted therein.
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assistance of counsel claim, on May 23, 2011. Docket # 45. Although not properly noticed for
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hearing in the court docket, the motion indicates a July 21, 2011, hearing date. Id. Within the
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motion, petitioner recognizes that the court has denied such a stay but states that the motion is
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being filed to complete the record, present all arguments and preserve the matter for appeal.
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Petitioner avers that there was no motion to stay before the court when the denial was issued and
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speculates that the denial was based on petitioner’s argument in favor of the discovery then
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sought, which was denied. However, petitioner recognizes that any request for a stay (implicit
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or explicit) has been denied.
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Respondent has now filed an opposition, presumably to preserve respondent’s
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arguments for the purpose of appeal. It may be that petitioner will be filing a reply. In any case,
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however, this order is issued for the purpose of clarification.
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Accordingly, IT IS ORDERED that:
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1. Petitioner’s request for a stay pending state court exhaustion of a claim of
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ineffective assistance of counsel, filed docket # 45, has been previously addressed and
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adjudicated, see docket entries # 34, # 39, # 41, and # 43; and
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2. The hearing date for the motion for a stay, purportedly noticed for hearing
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before the undersigned on July 21, 2011, is hereby VACATED.
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DATED: June 15, 2011
/s/ Gregory G. Hollows
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UNITED STATES MAGISTRATE JUDGE
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GGH:009
nesb2821.ord5
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