(HC) Perez v. Spearman ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SAM PEREZ, No. 2:19-CV-1223-KJM-DMC-P 12 Petitioner, 13 v. ORDER 14 M. ELIOT SPEARMAN, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. 19 On August 22, 2019, the Court directed Respondent to file a response to the 20 petition. Respondent complied by way of a motion to dismiss filed on October 11, 2019, arguing 21 that the Court should abstain from hearing the case under Younger v. Harris, 401 U.S. 37 (1971). 22 The District Judge denied that motion October 16, 2020. Respondent is now directed to file an 23 answer to the petition. In this regard, the Court notes that Petitioner has filed a response to the 24 Court’s June 19, 2020, order to show cause why this matter should not be dismissed for failure to 25 exhaust state court remedies. As of the date of Petitioner’s response – August 5, 2020 – it 26 appears that Petitioner had not yet presented his claim(s) to the California Supreme Court. 27 Therefore, to the extent Respondent contends the petition remains unexhausted, Respondent may 28 raise that affirmative defense in its answer or by way of a second motion to dismiss. ] Accordingly, IT IS HEREBY ORDERED that Respondent shall file either an 2 || answer or further motion to dismiss in response to Petitioner’s petition within 60 days of the date 3 || of this order. 4 5 || Dated: July 26, 2021 Svc 6 DENNIS M. COTA 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28