Rodney Burks v. Cate

Filing 24

ORDER Granting Respondent's 23 Request to Withdraw 14 Motion to Dismiss; ORDER Setting Briefing Schedule signed by Magistrate Judge Dennis L. Beck on 02/12/2013. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RODNEY T. BURKS,

1:12-CV-00918 LJO GSA HC

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Petitioner,

ORDER GRANTING RESPONDENT’S
REQUEST TO WITHDRAW MOTION TO
DISMISS
[Docs. #14, 23]

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v.

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ORDER SETTING BRIEFING SCHEDULE
M. CATE, Secretary,

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Respondent.
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/

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Petitioner is a state prisoner proceeding pro se with a Petition for Writ of Habeas Corpus
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pursuant to 28 U.S.C. § 2254.
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On October 23, 2012, Respondent filed a motion to dismiss the petition for being filed
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beyond the statute of limitations. Petitioner filed an opposition on December 3, 2012, wherein he
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complained that he suffered from both medical impairments and impediments with his legal mail
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which prevented him from timely filing his state petitions. He argued he should be granted equitable
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tolling due to these impediments which were beyond his control.
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On February 8, 2013, Respondent filed the instant request to withdraw the motion to dismiss.
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With commendable candor, Respondent concedes the issue of equitable tolling in light of the
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documents obtained by Respondent which support Petitioner’s claimed legal mail impairments and
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tolling calculations. Respondent states that equitable tolling appears justified, and when tolling is

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provided, the petition appears to be timely filed. Good cause having been presented, Respondent’s

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request will be granted.

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ORDER

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Accordingly, IT IS HEREBY ORDERED:

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1) Respondent’s request to withdraw the motion to dismiss is GRANTED and the motion to

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dismiss is DEEMED withdrawn;
2) Respondent is DIRECTED to file an answer within thirty (30) days of the date of service
of this order; and
3) Petitioner MAY FILE a traverse within thirty (30) days of the date Respondent’s answer is

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filed with the Court. If no traverse is filed, the petition and answer are deemed submitted at the

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expiration of the thirty days.

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IT IS SO ORDERED.
Dated:
6i0kij

February 12, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE