Laws v. California Department of Corrections

Filing 33

ORDER Granting Petitioner's Fifth Motion for Extension of Time to File Traverse, re 30 , signed by Magistrate Judge Jennifer L. Thurston on 07/30/14. Thirty-Day Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTHONY LAWS,

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ORDER GRANTING PETITIONER’S
FIFTH MOTION FOR EXTENSION OF
TIME TO FILE TRAVERSE

Petitioner,

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1:13-cv-01547-JLT (HC)

v.

(Doc. 30)

GARY SWARTHOUT,

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Respondent.

30-DAY DEADLINE

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Petitioner is a state prisoner proceeding pro se in a habeas corpus action pursuant to 28

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U.S.C. ' 2254. On July 9, 2014, Petitioner filed a motion to extend time to file Traverse,

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contending that his former attorney mailed the court transcripts to his prior prison and that he has

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been unable to obtain them in order to prepare his Traverse.
Petitioner alternatively has requested dismissal of his petition without prejudice in order to

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locate his state court records. Petitioner is advised that, while the Court is authorized to grant a

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dismissal without prejudice, the dismissal would likely render untimely any new petition he might

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file because the one-year limitation period on filing federal petitions is not tolled during the

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pendency of a federal petition. Since this petition has been pending for almost one year, it seems

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unlikely that Petitioner could timely file a new petition, even if the transcripts he needs were

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immediately obtained. However, ultimately, Petitioner is the one to make that decision, not this

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Court.
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In order to give Petitioner the opportunity to make a considered decision about dismissal

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versus proceeding without the court transcripts, the Court will grant the one further extension of

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time. The arguments discussed in the Answer are limited to whether appellate counsel was

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ineffective, and, thus, raise strictly legal issues that do not appear to rely expressly on evidence

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and testimony from the trial. Moreover, the Court has a copy of the transcripts and can review

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the transcripts as part of its regular habeas review. Petitioner should therefore carefully consider

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whether he actually needs the transcripts in order to prepare a Traverse. Good cause appearing,

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the Court ORDERS:

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Petitioner is granted 30-days from the date of service of this order in which to file
Traverse.

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IT IS SO ORDERED.
Dated:

July 30, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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