Hayden v. Searman

Filing 12

ORDER GRANTING 11 Motion to Rescind 8 Findings and Recommendation; ORDER REQUIRING Respondent to File Response; ORDER SETTING Briefing Schedule; ORDER DIRECTING Clerk of Court to Serve Documents on Attorney General, signed by Magistrate Judge Michael J. Seng on 7/20/2014. (Marrujo, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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1:14-cv-00514 LJO MJS HC
EUGENE HAYDEN, SR.,

ORDER GRANTING MOTION TO RESCIND
Petitioner, FINDINGS AND RECOMMENDATION
(Docs. 8, 11)

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v.

ORDER REQUIRING RESPONDENT TO
FILE RESPONSE

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M.E. SEARMAN, Warden,

ORDER SETTING BRIEFING SCHEDULE

Respondent. ORDER DIRECTING CLERK OF COURT
TO SERVE DOCUMENTS ON ATTORNEY
GENERAL

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Petitioner is a state prisoner proceeding pro se with a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254.

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On June 2, 2014, the Court issued a findings and recommendation based on

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Petitioner's failure to file a signed declaration as required by the Court's April 25, 2014

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order. Petitioner responded to the findings and recommendation, explained that he was

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never served with the order, and submitted a declaration as required. Court records do

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not reflect that the April 25, 2014 order was served on Petitioner. Accordingly,

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Petitioner's motion is granted and the findings and recommendation is hereby

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WITHDRAWN.

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Furthermore, preliminary review of the petition fails to reveal whether Petitioner is
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entitled to relief. 28 U.S.C. § 2243. Accordingly, pursuant to Rule 4 of the Rules

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Governing Section 2254 Cases and Rule 16 of the Federal Rules of Civil Procedure,1 the

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Court HEREBY ORDERS:

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1.

Respondent SHALL FILE a RESPONSE to the Petition2 within SIXTY (60) days

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of the date of service of this order. See Rule 4, Rules Governing Section 2254

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Cases; Cluchette v. Rushen, 770 F.2d 1469, 1473-1474 (9th Cir. 1985) (court has

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discretion to fix time for filing a response). A Response can be made by filing one

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of the following:

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A.

AN ANSWER addressing the merits of the Petition. Respondent SHALL

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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

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Rule 5, Rules Governing Section 2254 Cases. In the event Respondent

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asserts in the ANSWER that Petitioner has procedurally defaulted a claim,

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Respondent must also address the merits of the claim asserted. Copies of

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all transcripts and documents shall be filed electronically, unless not

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possible. See Local Rule 190(f).

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B.

A MOTION TO DISMISS the Petition. A Motion to Dismiss SHALL

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INCLUDE copies of all Petitioner’s state court filings and dispositive

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rulings. See Rule 5, Rules Governing Section 2254 Cases. 3 Copies of

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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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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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Rule 4 of the Rules Governing Section 2254 Cases provides that upon the court’s determination
that summary dismissal is inappropriate, the “judge must order the respondent to file an answer or other
pleading . . . or to take other action the judge may order.” Rule 4, Rules Governing Section 2254 Cases
(emphasis added); see also Advisory Committee Notes to Rule 4 and 5 of Rules Governing Section 2254
Cases (stating that a dismissal may obviate the need for filing an answer on the substantive merits of the
petition and that the Attorney General may file a Motion to Dismiss for failure to exhaust.); White v. Lewis,
874 F.2d 599, 60203 (9th Cir. 1989) (providing that Motions to Dismiss pursuant to Rule 4 are proper in a

(continued…)

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state court filings shall be filed electronically, unless not possible. See

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Local Rule 190(f).

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2.

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

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within THIRTY (30) days of the date Respondent’s Answer is filed with the Court.

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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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3.

If Respondent files a Motion to Dismiss, Petitioner SHALL FILE an Opposition or

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Statement of Non-Opposition within TWENTY-ONE (21) days of the date

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Respondent’s Motion is filed with the Court. If no Opposition is filed, the Motion to

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Dismiss is deemed submitted at the expiration of the thirty days. Any Reply to an

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Opposition to the Motion to Dismiss SHALL be filed within SEVEN (7) days after

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the opposition is served.

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4.

Unless already submitted, both Respondent and Petitioner SHALL COMPLETE

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and RETURN to the Court within THIRTY (30) days a Consent/Decline form

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indicating whether the party consents or declines to consent to the jurisdiction of

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the United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c)(1).

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5.

The Clerk of the Court is DIRECTED to SERVE a copy of this order on the

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Attorney General or his representative.

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

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

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granted upon a showing of good cause. All provisions of Local Rule 110 are applicable

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to this order.

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IT IS SO ORDERED.
Dated:

July 20, 2014

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/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
(…continued)
federal habeas proceeding.)

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