Kessler v. Hornbeak

Filing 41

ORDER Deeming 40 Respondent's "Statement Regarding Evidentiary Hearing" to be a Request to Submit Opposition to the Motion for Evidentiary Hearing, and Opposition; and ORDER Permitting Petitioner to File a Reply to the Opposition No Later Than Thirty (30) Days After the Date of Service of This Order, signed by Magistrate Judge Sandra M. Snyder on 7/28/2011. (Jessen, A)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 10 11 12 13 KELLY ALICE KESSLER, ) ) Petitioner, ) ) ) v. ) ) TINA HORNBEAK, Warden, et al.,) ) Respondents. ) ) ) 14 15 1:10-cv—0322-OWW-SMS-HC ORDER DEEMING RESPONDENT’S “STATEMENT REGARDING EVIDENTIARY HEARING” TO BE A REQUEST TO SUBMIT OPPOSITION TO THE MOTION FOR EVIDENTIARY HEARING, AND OPPOSITION ORDER PERMITTING PETITIONER TO FILE A REPLY TO THE OPPOSITION NO LATER THAN THIRTY (30) DAYS AFTER THE DATE OF SERVICE OF THIS ORDER DEADLINE FOR FILING A REPLY: THIRTY (30) DAYS 16 17 Petitioner is a state prisoner proceeding with counsel with 18 a petition for writ of habeas corpus pursuant to 28 U.S.C. 19 § 2254. 20 pursuant to Local Rules 302 and 303. 21 The matter has been referred to the Magistrate Judge On April 5, 2011, Petitioner filed a motion for an 22 evidentiary hearing which was electronically served on 23 Respondent. 24 2011, the Court ordered consideration of the motion deferred 25 until the merits of the petition were considered. 26 2011, Respondent served and filed a “Statement Regarding 27 Evidentiary Hearing,” in which Respondent explained why no 28 opposition to the motion was filed, and which contained points No opposition to the motion was filed. 1 On July 27, On July 28, 1 and authorities concerning the motion. 2 Despite its title, the “Statement” is DEEMED to be a request 3 for leave to file opposition due to developing law, and to be 4 opposition to the motion. 5 statement is considered to be Respondent’s opposition to the 6 motion. 7 8 The request is GRANTED, and the Petitioner may FILE a reply to the opposition no later than thirty days after the date of service of this order. 9 10 IT IS SO ORDERED. 11 Dated: icido3 July 28, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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