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10-2126 - Tucker v. Heath


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10-2126 - Tucker v. Heath
November 6, 2012
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MEMORANDUM & ORDER: Following this Court's grant of a stay to allow Tucker to pursue unexhausted claims in state court, Tucker now requests 16 permission to amend his petition and reopen this habeas proceeding. The Court grants Tucker 30 days from the date of this Order to file an amended petition for a writ of habeas corpus that includes all claims that he has properly exhausted. The Court notes further that should Tucker attempt to seek review of any unexhausted claims in his amended petition, it is unlikely that the Court will grant him an additional stay given that the Court has already afforded him an opportunity to pursue unexhausted claims. Within 30 days of this Order, Tucker shall also file a memorandum of law in support of the claims set forth in the amended petition. Within 30 days of receipt of Tucker's amended petition and memorandum of law, respondent shall show cause before this Court by the filing of a return to the petition, why a writ of habeas corpus should not be issued and serve a copy of the return on Tucker. Tucker, within 30 days of receipt of a copy of the return, shall file his reply, if any, with the Clerk of Court. SO ORDERED by Chief Judge Carol Bagley Amon, on 11/6/2012. C/mailed to pro se Petitioner. (Latka-Mucha, Wieslawa)
January 23, 2013
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MEMORANDUM & ORDER: The Court construes Tucker's 18 recent submissions as amending his habeas petition to include only his exhausted claims and directs respondent to respond according to the schedule set forth below. Accordingly, the Court allows Tucker's habeas petition to proceed on two grounds: (1) that evidence was admitted during his trial in violation of the Confrontation Clause, and (2) that his appellate counsel did not provide effective assistance because she failed to appeal the trial court's denial of trial counsel's request for a mistrial. Within 30 days of this Order, respondent shall show cause before this Court by the filing of a return to the petition, why a writ of habeas corpus should not be issued and serve a copy of the return on Tucker. Tucker, within 30 days of receipt of a copy of the return, shall file his reply, if any, with the Clerk of Court. SO ORDERED by Chief Judge Carol Bagley Amon, on 1/23/2013. C/mailed to pro se Petitioner. (Latka-Mucha, Wieslawa)
January 28, 2016
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MEMORANDUM AND ORDER: For the reasons set forth above, Tucker's petition is denied. Because Tucker has failed to make a "substantial showing of the denial of a constitutional right," a Certificate of Appealability shall not issue. 28 U.S.C. ยง 2253(c). The Clerk of Court is respectfully directed to enter Judgment in favor of defendants, terminate all pending motions, and close the case. Ordered by Chief Judge Carol Bagley Amon on 1/28/2016. (fwd for judgment) (Fernandez, Erica)