Kelly v. Madden

Filing 26

ORDER WITHDRAWING 20 Findings and Recommendation of March 20, 2017; ORDER GRANTING Respondent's 25 Motion to Withdraw 14 Motion to Dismiss; ORDER DEEMING Petitioner's 17 Motion to Stay as Moot, signed by Magistrate Judge Jennifer L. Thurston on 6/8/17. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN MICHAEL KELLY,

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Petitioner,

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v.

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ORDER WITHDRAWING FINDINGS AND
RECOMMENDATION OF MARCH 20,
2017 [Doc. 20]
ORDER GRANTING RESPONDENT’S
MOTION TO WITHDRAW MOTION TO
DISMISS [Doc. 25, 14]

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No. 1:16-cv-01577-DAD-JLT (HC)

RAYMOND MADDEN,
Respondent.

ORDER DEEMING PETITIONER’S
MOTION TO STAY AS MOOT [Doc. 17]

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On March 20, 2017, the Court issued Findings and Recommendation to grant

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Respondent’s motion to dismiss for failure to exhaust and to deny Petitioner’s motion for stay of

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proceedings. (Doc. Nos. 14, 17, 20). On April 6, 2017, Petitioner filed objections to the Findings

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and Recommendations. (Doc. No. 21). After expiration of the time for filing a reply to

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objections, the Findings and Recommendation was submitted to the District Judge for review.

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On May 3, 2017, Petitioner filed a motion to proceed with the petition. He stated that the

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California Supreme Court recently issued an order denying his unexhausted claims on April 19,

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2017, and that his claims were now fully exhausted. On May 9, 2017, the Court directed

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Respondent to submit a supplement to his motion to dismiss or file a motion to withdraw the

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motion to dismiss in light of Petitioner’s motion. On June 6, 2017, Respondent filed a motion to
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withdraw the motion to dismiss conceding that Petitioner had exhausted his claims.

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ORDER

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Accordingly, the Court ORDERS:

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1.

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WITHDRAWN;

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2.

The request to withdraw the motion to dismiss (Doc. 25, 14) is GRANTED;

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3.

The request to stay the action (Doc. 17) is MOOT;

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4.

Respondent SHALL:

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The Findings and Recommendation of March 20, 2017 (Doc. 20), is

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File a response to the Petition1 within 60 days of the date of service of this

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order. See Rule 4, Rules Governing Section 2254 Cases; Cluchette v.

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Rushen, 770 F.2d 1469, 1473-1474 (9th Cir. 1985)(court has discretion to

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

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the following:

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i.

An answer addressing the merits of the Petition. Respondent

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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

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the petition. See Rule 5, Rules Governing Section 2254 Cases.

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Any argument by Respondent that Petitioner has procedurally

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defaulted a claim SHALL be made in the answer, but must also

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address the merits of the claim asserted.

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ii.

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.2

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B.

If Respondent files an answer to the petition, Petitioner may file a traverse

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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 2254 Cases (emphasis added); see also Advisory Committee
Notes to Rules 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, 602-603 (9th Cir. 1989)(providing that Motions to Dismiss
pursuant to Rule 4 are proper in a federal habeas proceeding).

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within 30 days of the date Respondent’s answer is filed with the Court. If

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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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C.

If Respondent files a motion to dismiss, Petitioner SHALL file an

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opposition or Statement of non-opposition within 21 days of the date

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Respondent’s motion is filed with the Court. If no opposition is filed, the

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motion to dismiss is deemed submitted at the expiration of the thirty days.

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Any reply to an opposition to the motion to dismiss SHALL be filed

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within 7 days after the opposition is served.

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D.

Unless already submitted, both Respondent and Petitioner SHALL

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complete and return to the Court within 30 days a consent/decline form

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indicating whether the party consents or declines to consent to the

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jurisdiction of the United States Magistrate Judge pursuant to Title 28

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U.S.C. § 636(c)(1).

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IT IS SO ORDERED.
Dated:

June 8, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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