Trevizo v. Borders

Filing 58

ORDER Setting Briefing Schedule on Remand signed by Magistrate Judge Sheila K. Oberto on 9/22/2020. 45-day deadline. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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APRIL ROSIE LOPEZ TREVIZO,

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Case No. 1:16-cv-01845-DAD-SKO (HC)

Petitioner,

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ORDER SETTING BRIEFING SCHEDULE
ON REMAND

v.

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DEAN BORDERS, Warden,

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Respondent.

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Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant

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18 to 28 U.S.C. § 2254. This matter has been referred to the undersigned for findings and
19 recommendations pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C) and Local Rule 304.
On March 31, 2019, the District Court dismissed the petition as untimely and entered

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21 judgment. (Docs. 50, 51.) Petitioner appealed to the Ninth Circuit Court of Appeals. (Doc. 52.)
22 On September 15, 2020, the Ninth Circuit issued an order granting Petitioner’s motion to vacate
23 the judgment in part and remanding the matter to the District Court for further proceedings. (Doc.
24 56.) The Ninth Circuit granted a limited remand to allow the District Court to determine in the
25 first instance whether Petitioner’s habeas petition is timely in light of the January 26, 2015, state
26 court decision.1 The Ninth Circuit further directed the Court to reevaluate equitable tolling for
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In the January 26, 2015, decision, the Tulare County Superior Court granted the habeas petition, reduced a

28 charge to a misdemeanor and discharged Petitioner as to that case. (Lodged Doc. 5.) The Ninth Circuit has held
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1 the relevant time period.
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Accordingly, IT IS HEREBY ORDERED:

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1) Respondent is GRANTED forty-five (45) days from the date of service of this order to

4 supplement the record with additional evidence and to submit briefing on the issue whether the
5 federal petition is timely in light of the January 26, 2015, state court determination.
2) Petitioner is GRANTED forty-five (45) days from the date of Respondent’s filing to

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7 file a brief in opposition.
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IT IS SO ORDERED.

10 Dated:

September 22, 2020

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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that a new AEDPA one-year limitations period commences where a judgment has been amended. Smith v.

28 Williams, 871 F.3d 684 (9th Cir. 2017).

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