Trudeau v. Runnels

Filing 82

ORDER Setting Briefing Schedule Following Remand From the Ninth Circuit Court of Appeals, signed by Magistrate Judge Sandra M. Snyder on 6/1/2011. Respondent SHALL FILE a ANSWER addressing the merits of the Petition within SIXTY (60) days of the date of service of this order. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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FRANK W. TRUDEAU,

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1:02-cv-05764 LJO SMS (HC)

Petitioner,
ORDER SETTING BRIEFING SCHEDULE
FOLLOWING REMAND FROM THE NINTH
CIRCUIT COURT OF APPEALS

v.

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D. L. RUNNELS, Warden,

[Docs. 79. 80]

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Respondents.
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Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant
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to 28 U.S.C. § 2254. Petitioner is represented by Carolyn D. Phillips, Esq.
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On October 29, 2008, the instant petition for writ of habeas corpus was dismissed as
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untimely and judgment was entered. On November 19, 2008, Petitioner filed a notice of appeal
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in the Ninth Circuit Court of Appeals. On February 2, 2011, the Ninth Circuit found that the
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petition was timely and remanded the action back to this Court. Pursuant to the Ninth Circuit
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Court of Appeals’ order and Rule 4 of the Rules Governing Section 2254 Cases and Rule 16 of
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the Federal Rules of Civil Procedure,1 the Court HEREBY ORDERS:

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The Federal Rules of Civil Procedure “apply to proceedings for habeas corpus ... to the extent that the
practice in those proceedings (A) is not specified in a federal statute, the Rules Governing Section 2254 Cases, or the
Rules Governing Section 2255 Cases; and (B) has previously conformed to the practice in civil actions.”
Fed.R.Civ.P. 81(a)(4). Rule 12 also provides “[t]he Federal Rules of Civil Procedure, to the extent that they are not
inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.” Rule 12,
Rules Governing Section 2254 Cases.

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1.

Respondent SHALL FILE a ANSWER addressing the merits of the Petition2

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within SIXTY (60) days of the date of service of this order. See Rule 4, Rules

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Governing Section 2254 Cases; Cluchette v. Rushen, 770 F.2d 1469, 1473-1474

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(9th Cir. 1985) (court has discretion to fix time for filing a response). Respondent

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SHALL INCLUDE with the Answer any and all transcripts or other documents

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necessary for the resolution of the issues presented in the Petition. See Rule 5,

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Rules Governing Section 2254 Cases. In the event Respondent argues that

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Petitioner has procedurally defaulted a claim in the ANSWER, Respondent must

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also address the merits of the claim asserted.

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2.

After Respondent files an Answer to the Petition, Petitioner MAY FILE a

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Traverse within THIRTY (30) days of the date Respondent’s Answer is filed

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with the Court. If no Traverse is filed, the Petition and Answer are deemed

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submitted at the expiration of the thirty days.

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3.

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The Clerk of the Court is DIRECTED to SERVE a copy of this order on the
Attorney General or his representative.

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All motions shall be submitted on the record and briefs filed without oral argument unless

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otherwise ordered by the Court. Local Rule 230(l). Extensions of time will only be granted upon

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a showing of good cause. All provisions of Local Rule 110 are applicable to this order.

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IT IS SO ORDERED.

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Dated:
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June 1, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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Respondent is advised that a scanned copy of the Petition is available in the Court’s electronic case filing
system (“CM/ECF”).

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