Starling v. Asuncion
Filing
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ORDER Requiring Respondent to Re-Serve Motion to Dismiss on Petitioner within Seven Days signed by Magistrate Judge Michael J. Seng on 07/11/2017. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GREGORY W. STARLING,
Petitioner,
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v.
Case No. 1:17-cv-00216-LJO-MJS (HC)
ORDER REQUIRING RESPONDENT TO RESERVE MOTION TO DISMISS ON
PETITIONER WITHIN SEVEN DAYS
D. ASUNCION, Warden
Respondent.
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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas
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corpus under 28 U.S.C. § 2254. Respondent D. Asuncion, Warden of California State
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Prison, Los Angeles County, is represented by Justain P. Riley of the Office of the
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California Attorney General.
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On April 6, 2017, Respondent filed a motion to dismiss the petitions as time-
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barred and partially unexhausted. (ECF No. 11.) Petitioner filed no opposition and, on
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May 17, 2017, the undersigned issued findings and recommendations to grant the
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motion to dismiss. (ECF No. 14.) In his objections to the findings and recommendations,
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Petitioner states that he never received the motion to dismiss. (ECF No. 15.)
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The motion to dismiss includes a certificate of service indicating it was served on
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Petitioner at his current institution on April 6, 2017. Nevertheless, the Court concludes
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that the motion should be re-served on Petitioner and Petitioner should have an
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opportunity to respond.
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Based on the foregoing, it is HEREBY ORDERED that:
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1. Within seven (7) days of the date of service of this order, Respondent shall
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re-serve the motion to dismiss on Petitioner;
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2. Petitioner shall file an opposition or statement of non-opposition on or
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before August 10, 2017; and
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3. Any reply shall be filed within seven (7) days after the opposition is served.
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IT IS SO ORDERED.
Dated:
July 11, 2017
/s/
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Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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