Lawton v. Muniz

Filing 11

ORDER GRANTING 10 Motion to Vacate; ORDER REQUIRING Respondent to File Response; ORDER SETTING Briefing Schedule signed by Magistrate Judge Michael J. Seng on 8/3/2017. (Sant Agata, S)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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1:17-cv-00737-MJS (HC)
CHARLES LAWTON,

ORDER GRANTING MOTION TO VACATE
Petitioner, (ECF NO. 10)

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ORDER REQUIRING RESPONDENT TO
FILE RESPONSE

v.

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ORDER SETTING BRIEFING SCHEDULE
WILLIAM MUNIZ, 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 pursuant to 28 U.S.C. § 2254. William Muniz, Warden of Salinas Valley State

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Prison, is hereby substituted as the proper named respondent pursuant to Rule 25(d) of

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the Federal Rules of Civil Procedure.

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On May 31, 2017, the Court issued an order directing Respondent to respond to

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the petition and setting a briefing schedule. (ECF No. 4.) On July 5, 2017, Petitioner filed

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a first amended petition. (ECF No. 9.) Before the Court is Respondent’s request to

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vacate the Court’s prior order and schedule so that Respondent may instead respond to

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the amended petition. (ECF No. 10.) The Court will do so.

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The Court has conducted a preliminary review of the amended petition. It is not

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clear from the face of the amended petition whether Petitioner is entitled to relief. 28
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U.S.C. § 2243. Accordingly, pursuant to Rule 4 of the Rules Governing Section 2254

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Cases and Rule 16 of the Federal Rules of Civil Procedure, 1 the Court HEREBY

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ORDERS:

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1.

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The Court’s prior order directing Respondent to respond and setting a briefing
schedule is VACATED;

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Respondent SHALL FILE a RESPONSE to the Amended Petition2 within SIXTY

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(60) days of the date of service of this order. See Rule 4, Rules Governing

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Section 2254 Cases; Cluchette v. Rushen, 770 F.2d 1469, 1473-1474 (9th Cir.

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1985) (court has discretion to fix time for filing a response). A Response can be

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made by filing one of the following:

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A.

AN ANSWER addressing the merits of the Amended 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 the

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Amended Petition. See Rule 5, Rules Governing Section 2254 Cases. In

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the event Respondent asserts in the ANSWER that Petitioner has

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procedurally defaulted a claim, Respondent must also address the merits

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of the claim asserted. Copies of all transcripts and documents shall be filed

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electronically, unless not possible. See Local Rule 190(f).

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B.

A MOTION TO DISMISS the Amended Petition. A Motion to Dismiss

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

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rulings. See Rule 5, Rules Governing Section 2254 Cases. 3 Copies of

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The Federal Rules of Civil Procedure “apply to proceedings for habeas corpus ... to the extent
that the practice in those proceedings (A) is not specified in a federal statute, the Rules Governing Section
2254 Cases, or the Rules Governing Section 2255 Cases; and (B) has previously conformed to the
practice in civil actions.” Fed.R.Civ.P. 81(a)(4). Rule 12 also provides “[t]he Federal Rules of Civil
Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be
applied to a proceeding under these rules.” Rule 12, Rules Governing Section 2254 Cases.
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Respondent is advised that a scanned copy of the Petition is available in the Court’s electronic
case filing system (“CM/ECF”).
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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 Section 2254 Cases

(continued…)

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state court filings shall be filed electronically, unless not possible. See

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Local Rule 190(f).

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2.

If Respondent files an Answer to the Amended Petition, Petitioner MAY FILE a

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Traverse within THIRTY (30) days of the date Respondent’s Answer is filed with

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

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submitted at the expiration of the thirty days.

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3.

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

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

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Respondent’s Motion is filed with the Court. If no Opposition is filed, the Motion to

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Dismiss is deemed submitted at the expiration of the thirty days. Any Reply to an

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

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the opposition is served.

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

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unless otherwise ordered by the Court. Local Rule 230(l). Extensions of time will only be

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granted upon a showing of good cause. All provisions of Local Rule 110 are applicable

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to this order.

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IT IS SO ORDERED.
Dated:

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August 3, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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(…continued)
(emphasis added); see also Advisory Committee Notes to Rule 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, 60203 (9th Cir. 1989) (providing that Motions to Dismiss pursuant to Rule 4 are proper in a
federal habeas proceeding.)

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