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Anderson v. McBride

December 28, 2006

EUGENE ANDERSON, PETITIONER,
v.
THOMAS MCBRIDE, WARDEN, WILKINSON, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Judge Marbley

MAGISTRATE JUDGE KEMP REGINALD

ORDER

On August 24, 2006, this Court denied respondent's motion to dismiss or request for a stay of proceedings and petitioner's request for a stay of proceedings pending exhaustion of state court remedies. Petitioner had presented claims two through six of the instant federal habeas corpus petition to the state courts in an August 23, 2004, petition for post conviction relief. At the time of this Court's order, the trial court had yet to issue a decision on petitioner's post conviction petition, and it did not appear that a decision was forthcoming. See Doc. No. 11.

Respondent now has filed a supplemental return of writ indicating that the state trial court has denied petitioner's post conviction petition as untimely. See Exhibit 26 to Return of Writ. Additionally, petitioner states that he filed a timely appeal of the trial court's decision. See Petitioner's Motion for Extension of Time, Doc. No. 21. However, neither of the parties indicate the current status of petitioner's appeal. Further, it is the position of the respondent that habeas corpus claims two through seven are procedurally defaulted. See Supplemental Return of Writ.

In view of the foregoing, respondent is DIRECTED to provide a supplemental response indicating the status of petitioner's post conviction appeal, and including copies of any relevant state court documents within ten (10) days of the date of this order.

IT IS SO ORDERED.

Terence P. Kemp United States Magistrate Judge

20061228

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