Chavez v. Warden

Filing 14

ORDER VACATING 12 Findings and Recommendation; ORDER DIRECTING RESPONDENT to File a Response to Petition signed by Magistrate Judge Erica P. Grosjean on 2/20/2018. Clerk to serve a copy of this order, a copy of the Petition and the Order re Consent on the Attorney General. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES D. CHAVEZ,
Petitioner,

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Case No. 1:17-cv-01202- DAD-EPG-HC
ORDER VACATING FINDINGS AND
RECOMMENDATION (ECF No. 12)

v.

ORDER TO RESPOND

WARDEN,

ORDER SETTING BRIEFING SCHEDULE

Respondent.

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ORDER DIRECTING CLERK OF COURT
TO SERVE DOCUMENTS ON
CALIFORNIA ATTORNEY GENERAL

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

20 pursuant to 28 U.S.C. § 2254.
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On September 26, 2017, the Court ordered Petitioner to show cause why the petition

22 should not be dismissed for failure to exhaust state court remedies. (ECF No. 6). On November
23 7, 2017, Petitioner filed a motion “requesting an additional 30 days in which to file an amended
24 petition or to exhaust at the Supreme Court level.” (ECF No. 8). The Court construed the motion
25 as a request for an extension of time to file a response to the order to show cause and granted an
26 extension of time. The Court also informed Petitioner that if he wished to stay the proceedings so
27 that he could return to state court to exhaust his claims, Petitioner must file a motion for stay that
28 addresses the factors set forth in Rhines v. Weber, 544 U.S. 269 (2005). (ECF No. 9). Petitioner

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1 did not file a response to the order to show cause, and the undersigned issued findings and
2 recommendation to dismiss the petition without prejudice for nonexhaustion. (ECF No. 12).
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Petitioner has filed objections to the findings and recommendation. (ECF No. 13).

4 Therein, Petitioner informed the Court that he filed a state habeas petition in the California
5 Supreme Court to exhaust his state court remedies. (ECF No. 13).
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Accordingly, the Court HEREBY ORDERS:
1. The findings and recommendation issued on January 23, 2018 (ECF No. 12) are
VACATED;

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2. Within SIXTY (60) days of the date of service of this order, Respondent SHALL FILE a

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RESPONSE to the Petition. See Rule 4, Rules Governing Section 2254 Cases; Cluchette

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v. Rushen, 770 F.2d 1469, 1473-74 (9th Cir. 1985) (court has discretion to fix time for

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filing a response). A Response can be made by filing one of the following:

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A.

AN ANSWER addressing the merits of the Petition. Any argument by

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Respondent that Petitioner has procedurally defaulted a claim SHALL BE MADE

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in the ANSWER, but must also address the merits of the claim asserted.

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B.

A MOTION TO DISMISS the Petition.

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3. Within SIXTY (60) days of the date of service of this order, Respondent SHALL FILE

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any and all transcripts or other documents necessary for the resolution of the issues

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presented in the Petition. See Rule 5(c), Rules Governing Section 2254 Cases.

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4. If Respondent files an Answer to the Petition, Petitioner MAY FILE a Traverse within

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THIRTY (30) days of the date of service of Respondent’s Answer. If no Traverse is

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filed, the Petition and Answer are deemed submitted at the expiration of the thirty days.

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5. 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 of service of

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Respondent’s Motion. Any Reply to an Opposition to the Motion to Dismiss SHALL be

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filed within SEVEN (7) days after the Opposition is served. The Motion to Dismiss will

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be deemed submitted TWENTY-EIGHT (28) days after the service of the Motion or

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when the Reply is filed, whichever comes first. See Local Rule 230(l).

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6. Respondent SHALL COMPLETE and RETURN to the Court within THIRTY (30) days

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a Consent/Decline form indicating whether Respondent consents or declines to consent to

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the jurisdiction of a the United States Magistrate Judge pursuant to Title 28 U.S.C. §

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636(c)(1).

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7. The Clerk of the Court is DIRECTED to SERVE a copy of this order on the California

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Attorney General or his representative.

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

8 otherwise ordered by the Court. Local Rule 230(l). These dates should be considered as firm by
9 all parties. If any party requires additional time, it should file a motion for amendment of the
10 schedule before a deadline has passed and explain in detail why the party cannot comply with
11 this schedule. Extensions of time will only be granted upon a showing of good cause. All
12 provisions of Local Rule 110 are applicable to this order.
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IT IS SO ORDERED.
Dated:

February 20, 2018

/s/
UNITED STATES MAGISTRATE JUDGE

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