Millsap v. People of the State of Calfornia

Filing 26

ORDER granting Respondent's request to withdraw motion to dismiss 18 , 22 and setting briefing schedule signed by Magistrate Judge Erica P. Grosjean on 10/2/2017. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FERNANDO SINGLETON MILLSAP, 12 Petitioner, 13 14 Case No. 1:17-cv-00793-DAD-EPG-HC ORDER GRANTING RESPONDENT’S REQUEST TO WITHDRAW MOTION TO DISMISS v. PEOPLE OF THE STATE OF CALIFORNIA, ORDER SETTING BRIEFING SCHEDULE 15 (ECF Nos. 18, 22) Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. On August 15, 2017, Respondent moved to dismiss the petition. 19 (ECF No. 18). On September 1, 2017, Respondent filed the instant request to withdraw the 20 motion to dismiss in light of the Ninth Circuit’s recent decision in Clayton v. Biter, 868 F.3d 840 21 (9th Cir. 2017). (ECF No. 22). 22 Accordingly, the Court HEREBY ORDERS: 23 1. GRANTED; 24 25 Respondent’s request to withdraw the motion to dismiss (ECF No. 22) is 2. Within SIXTY (60) days of the date of service of this order, Respondent SHALL 26 FILE an ANSWER addressing the merits of the Petition. See Rule 4, Rules 27 Governing Section 2254 Cases; Cluchette v. Rushen, 770 F.2d 1469, 1473-74 (9th 28 Cir. 1985) (court has discretion to fix time for filing a response). Any argument 1 1 by Respondent that Petitioner has procedurally defaulted a claim SHALL BE 2 MADE in the ANSWER, but must also address the merits of the claim asserted. 3 3. Within SIXTY (60) days of the date of service of this order, Respondent SHALL 4 FILE any and all transcripts or other documents necessary for the resolution of the 5 issues presented in the Petition. See Rule 5(c), Rules Governing Section 2254 6 Cases. 7 4. Petitioner MAY FILE a Traverse within THIRTY (30) days of the date 8 Respondent’s Answer is filed with the Court. If no Traverse is filed, the Petition 9 and Answer are deemed submitted at the expiration of the thirty days. 10 All motions shall be submitted on the record and briefs filed without oral argument unless 11 otherwise ordered by the Court. Local Rule 230(l). These dates should be considered as firm by 12 all parties. If any party requires additional time, it should file a motion for amendment of the 13 schedule before a deadline has passed and explain in detail why the party cannot comply with 14 this schedule. Extensions of time will only be granted upon a showing of good cause. All 15 provisions of Local Rule 110 are applicable to this order. 16 17 18 IT IS SO ORDERED. Dated: October 2, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 2

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