Rathbun vs. Attorney General

Filing 24

ORDER signed by District Judge Virginia A. Phillips on 11/17/09, ORDERING that petitioner is GRANTED 30 days from the date of this Order to file a traverse. (Kastilahn, A)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA STEVEN EDWARD RATHBUN, ) ) Petitioner, ) ) v. ) ) K. PROPSER, Warden, ) ) Respondent. ) ________________________ )

Case No. CIV S-06-1311 VAP [Motion filed on October 9, 2007] ORDER GRANTING LEAVE TO FILE UNTIMELY TRAVERSE

Petitioner is a state prisoner proceeding pro se in a On January 5, 2009,

17 habeas corpus action pursuant to 28 U.S.C. § 2254. The 18 petition was filed on June 29, 2006. 19 the action was transferred to this Court pursuant to an 20 Order of Designation of Judge to Serve in Another 21 District Within the Ninth Circuit. 22 23 On October 9, 2007, Petitioner filed a motion seeking Respondent filed no opposition. On 24 (1) the appointment of counsel and (2) leave to file an 25 untimely traverse. 26 October 12, 2007, Magistrate Judge Brennan issued an 27 order denying the appointment of counsel, but not 28

1 addressing Petitioner's request to file an untimely 2 traverse. 3 4 Petitioner claims he was never properly served with a Petitioner's prison (Mot. at Ex. 5 copy of Respondent's answer to his petition, and was thus 6 unable to file a timely traverse. 8 2.) 10 11 The Court finds that Petitioner has established good 12 cause for his failure to file a timely traverse, and thus 13 GRANTS him 30 days from the date of this Order to file a 14 traverse. 15 16 17 18 Dated: 19 20 21 22 23 24 25 The Declaration of Service by U.S. Mail attached to Respondent's Answer is not only unsigned, but fails to 26 include the name of a declarant. Compare Answer (Dkt. No. 27 14) at p. 45 (blank declaration of service) with Resp.'s Not. of Filing (Dkt. No. 15) at p. 3 (declaration of 28 service electronically signed by Catherine Tennant).
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The Court thus addresses this request now.

7 legal mail record supports this assertion. 9 ever filed by Respondent.1

In addition, no duly executed proof of service was

November 17, 2009 VIRGINIA A. PHILLIPS United States District Judge