House v. Gonzalez

Filing 22

ORDER Deeming Respondent's Motion to Dismiss to be Withdrawn 13 , 21 ; ORDER Setting Briefing Schedule, signed by Magistrate Judge Sheila K. Oberto on 9/5/11. (Verduzco, M)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JAVANCE J. HOUSE,

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Petitioner,

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v.
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TERRI GONZALEZ, Warden
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Respondent.
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1:11-cv—00687-SKO-HC
ORDER DEEMING RESPONDENT’S MOTION
TO DISMISS TO BE WITHDRAWN
(DOCS. 13, 21)
ORDER SETTING A BRIEFING SCHEDULE

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Petitioner is a state prisoner proceeding pro se with a

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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

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Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to

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the jurisdiction of the United States Magistrate Judge to conduct

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all further proceedings in the case, including the entry of final

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judgment, by manifesting their consent in writings signed by the

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parties or their representatives and filed by Petitioner on May

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12, 2011, and on behalf of Respondent on June 2, 2011.

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Pending before the Court is Respondent’s request to 1)

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withdraw the Respondent’s motion to dismiss the petition as

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untimely that was filed on July 5, 2011, and 2) receive a

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briefing schedule for the filing of a “merits response” to the
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petition.

(Doc. 21, 1-2.)

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Respondent seeks to withdraw the motion because Respondent

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has reviewed evidence concerning Petitioner’s argument that the

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statute of limitations was equitably tolled due to Petitioner’s

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mental condition and to separation from legal materials due to an

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institutional transfer.

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Although no local rule requires that a party seek permission

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to withdraw a motion, in this action the Court on May 4, 2011,

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ordered Respondent to file a response to the petition and set

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forth a briefing schedule.

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that a scheduling order shall not be modified except upon a

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showing of good cause and with the judge’s consent.

Fed. R. Civ. P. 16(b)(4) provides

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It thus appears that Respondent is seeking to modify a

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scheduling order based on a determination that the merits of the

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motion require withdrawal of the motion and waiver of the defense

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of the statute of limitations.

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The Court concludes that Respondent has shown good cause for

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withdrawal of the motion and modification of the briefing

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schedule set forth in the Court’s order requiring Respondent to

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file a response to the petition.

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Accordingly, it is ORDERED that:

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1)

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Respondent’s motion to dismiss the petition as untimely

is DEEMED withdrawn; and
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Respondent SHALL FILE an answer addressing the merits of

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the petition no later than sixty (60) days after the date of

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service of this order; and

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3)

Petitioner MAY FILE a traverse within THIRTY (30) days

of the date Respondent’s answer is filed with the Court.
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If no

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traverse is filed, the petition and answer are deemed submitted

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at the expiration of the thirty (30) days.

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Requests for extensions of time will only be granted upon a

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showing of good cause.

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applicable to this order.

All provisions of Local Rule 110 are

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IT IS SO ORDERED.

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Dated:
ie14hj

September 5, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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