McKinney v. Hedgpeth

Filing 16

ORDER signed by Magistrate Judge Gary S. Austin on 6/23/2015 discharging 12 Order to Show Cause; setting Briefing Schedule and directing Respondent to file a response to 1 Petition. Clerk to serve a copy of this order, a copy of the Petition and the Order re Consent on the Attorney General. (Consent or Decline due by 8/27/2015). (Attachments: # 1 Petition, # 2 Consent Form). (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALONZO McKINNEY,

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Petitioner,

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1:14-cv-01271-GSA-HC
ORDER DISCHARGING ORDER TO
SHOW CAUSE (ECF No. 12)

v.
ORDER SETTING BRIEFING SCHEDULE

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HEDGPETH,
ORDER DIRECTING CLERK OF COURT
TO SERVE DOCUMENTS ON ATTORNEY
GENERAL

Respondent.

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

18 U.S.C. § 2254. He has consented to the jurisdiction of the Magistrate Judge pursuant to 28
19 U.S.C. § 636(c).
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On November 24, 2014, Petitioner filed his petition in the United States District Court for

21 the Northern District of California. On January 9, 2015, Magistrate Judge Laurel Beeler of the
22 Northern District of California issued an order dismissing Petitioner’s first claim concerning
23 prison conditions and transferring the action to this Court for consideration of the remaining two
24 claims which challenge the execution of Petitioner’s sentence. (ECF No. 4). Petitioner alleges
25 that he was denied witnesses (including the reporting employee) and evidence at a disciplinary
26 hearing on September 11, 2011 or earlier. Petitioner also alleges that he was denied witnesses
27 (including the reporting employee) at a disciplinary hearing on or about May 9, 2011. Petitioner
28 alleges that the length of his confinement was affected by both of these claims.

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On March 18, 2015, the Court issued an order to show cause why the petition should not

2 be dismissed for containing unexhausted claims and for violating the statute of limitations. (ECF
3 No. 12). Petitioner filed a response indicating that he had exhausted the claims in his petition
4 and that he raised these claims to the Bakersfield Superior Court, Fresno Appellate Court, and
5 the California Supreme Court. Petitioner also indicates that he has complied with the statute of
6 limitations. Based upon Petitioner’s indication that he has exhausted his claims and that he
7 complied with the statute of limitations, and good cause having been shown, the Court will
8 discharge the pending order to show cause issued on March 18, 2015.
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It is not clear from the face of the petition whether Petitioner is entitled to relief. 28

10 U.S.C. § 2243. Accordingly, pursuant to Rule 4 of the Rules Governing Section 2254 Cases and
11 Rule 16 of the Federal Rules of Civil Procedure, the Court HEREBY ORDERS:
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The Order to Show Cause issued on March 18, 2015, is DISCHARGED;

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Respondent SHALL FILE a RESPONSE to the Petition 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

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one of the following:

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A.

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SHALL INCLUDE with the Answer any and all transcripts or other

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documents necessary for the resolution of the issues presented in the

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Petition. See Rule 5(c), Rules Governing Section 2254 Cases. Any

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argument by Respondent that Petitioner has procedurally defaulted a claim

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SHALL BE MADE in the ANSWER, but must also address the merits of

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the claim asserted.

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B.

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

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dispositive rulings. See Rule 5(c), Rules Governing Section 2254 Cases.

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AN ANSWER addressing the merits of the Petition. Respondent

A MOTION TO DISMISS the Petition. A Motion to Dismiss

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

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Court. If no Traverse is filed, the Petition and Answer are deemed submitted at

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the expiration of the thirty days.

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

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

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Respondent’s Motion is filed with the Court. Any Reply to an Opposition to the

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

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is served. The Motion to Dismiss will be deemed submitted TWENTY-EIGHT

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(28) days after the service of the Motion or when the Reply is filed, whichever
comes first. See Local Rule 230(l).

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4.

Respondent SHALL COMPLETE and RETURN to the Court within THIRTY

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(30) days a Consent/Decline form indicating whether Respondent consents or

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declines to consent to the jurisdiction of a the United States Magistrate Judge

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pursuant to Title 28 U.S.C. § 636(c)(1).

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Attorney General or her representative.

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

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

18 otherwise ordered by the Court. Local Rule 230(l). Extensions of time will only be granted
19 upon a showing of good cause. All provisions of Local Rule 110 are applicable to this order.
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IT IS SO ORDERED.
Dated:

June 23, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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