Luna v. Mule Creek State Pri, et al

Filing 68

ORDER signed by Magistrate Judge Gregory G. Hollows on 10/19/2015 ORDERING respondent to file a brief on the issue of petitioner's diligence, or a statement of non-opposition to the potential finding of diligence, within 28 days. Petitioner may file a response to any brief in opposition within fourteen days thereafter.(Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

BENITO JULIAN LUNA,

12
13
14
15

No. 2:04-cv-0627 MCE GGH P

Petitioner,
v.

ORDER

SCOTT KERNAN,
Respondent.

16
17

Petitioner is a state prisoner represented by counsel, proceeding with an application for a

18

writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 29, 2015, the Ninth Circuit Court

19

of Appeals vacated the district court’s judgment dismissing the petition as untimely, and

20

remanded “for the district court to determine in the first instance, after conducting an evidentiary

21

hearing if necessary, whether Luna diligently pursued his rights through the date of filing, June 3,

22

2011.” The court stated that the district court’s determination would control whether the petition

23

should be deemed timely. (ECF No. 61.) On July 30, 2015, the mandate issued. On August 28,

24

2015, pursuant to this court’s order, petitioner filed a motion to expand the record. As it was

25

unopposed, it was granted on October 7, 2015.

26

A review of the expanded record in light of the Ninth Circuit Court of Appeals order

27

directing this court to consider petitioner’s diligence in pursuing his rights through the date of

28

filing the amended petition, June 3, 2011, indicates that petitioner had written over thirty letters to
1

1

his attorney inquiring about his case prior to that date. See ECF No. 65-2. In light of those letters

2

pertaining to petitioner’s diligence, as addressed by the Ninth Circuit, respondent will be given

3

the opportunity to file a brief in opposition to a potential finding of diligence. Should respondent

4

decline to oppose a potential finding in petitioner’s favor on this issue, he shall file a statement of

5

non-opposition.

6

Accordingly, IT IS ORDERED that:

7

1. Within twenty-eight days of this order, respondent shall file a brief on the issue of

8
9

petitioner’s diligence, or a statement of non-opposition to the potential finding of diligence.
2. Petitioner may file a response to any brief in opposition within fourteen days

10

thereafter.

11

Dated: October 19, 2015

12

/s/ Gregory G. Hollows

13

UNITED STATES MAGISTRATE JUDGE

14
15
16
17

GGH:076/Luna0627.brf

18
19
20
21
22
23
24
25
26
27
28
2