Dustin v. Pffeifer

Filing 20

ORDER Discharging Order to Show Cause 12 ; ORDER DENYING as Moot Motion for Extension of Time 19 ; ORDER to Respond; ORDER SETTING Briefing Schedule; ORDER DIRECTING Clerk of Court to Serve Documents on California Attorney General, signed by Magistrate Judge Erica P. Grosjean on 3/20/17. (Hellings, J)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 DALE OWEN DUSTIN, 9 Petitioner, 10 11 Case No. 1:16-cv-01874-EPG-HC ORDER DISCHARGING ORDER TO SHOW CAUSE (ECF No. 12) v. ORDER DENYING AS MOOT MOTION FOR EXTENSION OF TIME (ECF No. 19) C. PFFEIFER, Respondent. 12 ORDER TO RESPOND 13 ORDER SETTING BRIEFING SCHEDULE 14 ORDER DIRECTING CLERK OF COURT TO SERVE DOCUMENTS ON CALIFORNIA ATTORNEY GENERAL 15 16 17 Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 18 U.S.C. § 2254. 19 On October 21, 2016, the instant federal petition for writ of habeas corpus was filed in 20 the United States District Court for the Northern District of California. (ECF No. 1). On 21 December 14, 2016, the petition was transferred to this Court. (ECF No. 8). In the petition, 22 Petitioner challenges two prison disciplinary proceedings. Petitioner states that although the 23 disciplinary violations were “not serious enough to take [credits] or add time onto [his] 24 sentence,” Petitioner was penalized with 90 days C-status. (ECF No. 1 at 2, 7). On January 12, 25 2017, the Court ordered Petitioner to show cause why the petition should not be dismissed for 26 lack of habeas jurisdiction under Nettles v. Grounds, 830 F.3d 922, 935 (9th Cir. 2016) (en 27 banc), because it was unclear whether success on Petitioner’s claims would necessarily lead to 28 his immediate or earlier release from confinement. (ECF No. 12). 1 1 On March 16, 2017, Petitioner filed a motion for an extension of time to respond to the 2 order to show cause. (ECF No. 19). Therein, Petitioner clarified that his C-status penalty resulted 3 in him earning fewer credits than he ordinarily would have if he had not been placed in C-status. 4 Based on Petitioner’s new allegations, it appears that the petition may fall within the core of 5 habeas corpus under Nettles. However, additional information is required before the Court can 6 make such a determination. As it is not clear from the face of the petition whether Petitioner is 7 entitled to relief, 28 U.S.C. § 2243, the Court will order Respondent to file a response to the 8 petition. 9 10 Accordingly, the Court HEREBY ORDERS: 1. The order to show cause issued on January 12, 2017 (ECF No. 12) is DISCHARGED; 11 12 2. The motion for extension of time (ECF No. 22) is DENIED as MOOT; 13 3. Within SIXTY (60) days of the date of service of this order, Respondent SHALL 14 FILE a RESPONSE to the Petition. See Rule 4, Rules Governing Section 2254 15 Cases; Cluchette v. Rushen, 770 F.2d 1469, 1473–74 (9th Cir. 1985) (court has 16 discretion to fix time for filing a response). A Response can be made by filing one 17 of the following: 18 A. 19 by Respondent that Petitioner has procedurally defaulted a claim SHALL 20 BE MADE in the ANSWER, but must also address the merits of the claim 21 asserted. 22 B. 23 4. AN ANSWER addressing the merits of the Petition. Any argument A MOTION TO DISMISS the Petition. Within SIXTY (60) days of the date of service of this order, Respondent SHALL 24 FILE any and all transcripts or other documents necessary for the resolution of the 25 issues presented in the Petition. See Rule 5(c), Rules Governing Section 2254 26 Cases. 27 28 5. If Respondent files an Answer to the Petition, Petitioner MAY FILE a Traverse within THIRTY (30) days of the date of service of Respondent’s Answer. If no 2 1 Traverse is filed, the Petition and Answer are deemed submitted at the expiration 2 of the thirty days. 3 4. If Respondent files a Motion to Dismiss, Petitioner SHALL FILE an Opposition 4 or Statement of Non-Opposition within TWENTY-ONE (21) days of the date of 5 service of Respondent’s Motion. Any Reply to an Opposition to the Motion to 6 Dismiss SHALL be filed within SEVEN (7) days after the Opposition is served. 7 The Motion to Dismiss will be deemed submitted TWENTY-EIGHT (28) days 8 after the service of the Motion or when the Reply is filed, whichever comes first. 9 See Local Rule 230(l). 10 6. Respondent SHALL COMPLETE and RETURN to the Court within THIRTY 11 (30) days a Consent/Decline form indicating whether Respondent consents or 12 declines to consent to the jurisdiction of a the United States Magistrate Judge 13 pursuant to Title 28 U.S.C. § 636(c)(1). 14 7. California Attorney General or his representative. 15 16 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 17 otherwise ordered by the Court. Local Rule 230(l). These dates should be considered as firm by 18 all parties. If any party requires additional time, the party should file a motion for amendment of 19 the schedule before a deadline has passed and explain in detail why the party cannot comply with 20 this schedule. Extensions of time will only be granted upon a showing of good cause. All 21 provisions of Local Rule 110 are applicable to this order. 22 23 24 IT IS SO ORDERED. Dated: March 20, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 25 26 27 28 3

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