Dorris v. Adams

Filing 20

ORDER signed by Magistrate Judge Kendall J. Newman on 5/6/2011 ORDERING that the 16 order to show cause is DISCHARGED; ptnr's 19 "motion to proceed" w/ this action is GRANTED; respondent shall, w/in 21 days, file a reply to ptnr's opposition; and the court DEFERS ruling on ptnr's 18 motion for appointment of counsel, and respondent's 13 motion to dismiss. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NATHAN ANTHONY DORRIS,
Petitioner,

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No. 2:10-cv-02482 FCD KJN P

vs.
D. ADAMS, Warden,
Respondent.

ORDER
/

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On March 31, 2011, this court ordered petitioner to show cause why he failed to

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respond to respondent’s pending motion to dismiss, and to file such opposition. Petitioner has

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timely filed a responsive “motion to proceed,” and an opposition (entitled “response”) to the

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motion to dismiss. The order to show cause is therefore discharged.

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Petitioner contends that respondent’s motion to dismiss, premised on petitioner’s

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alleged failure to timely file his federal habeas corpus petition, is without merit. Although the

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case docket indicates that the petition was filed on September 10, 2010, petitioner contends that

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he gave the petition to prison officials for mailing on August 17, 2008, which is the date of

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petitioner’s signature on the petition. Petitioner contends that he is entitled to equitable tolling of

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the statute of limitations for the interval period.

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Specifically, petitioner contends that he erroneously addressed his original petition
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to the former address of the Fresno division of the United States District Court, Eastern District

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of California, viz., “Clerk, U.S. District Court, Rm 5000[,] 1130 ‘O’ Street, Fresno California

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938211 . . . not knowing that the new address was in effect [in Sacramento].” (Dkt. No. 17 at 3.)

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Petitioner asserts that he addressed this petition to the outdated Fresno address because that was

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the only address provided “in the Corcoran State Prison law library on 3A yard.” (Id.) Petitioner

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asserts that he thereafter made repeated inquiries regarding the status of his petition, and has

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attached copies of letters of inquiry, dated April 18, 2009, and September 8, 2010, addressed

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respectively to “Court Clerk” and “The Court;” included with the second letter was a new copy

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(with original dates) of the original petition. (Id. at 5-6.) The Fresno division relied on the new

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copy of the petition to open this action on September 10, 2010 (Dkt. No. 1), and transfer the

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action to the Sacramento division by order filed September 15, 2010 (Dkt. No. 3).

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Petitioner contends that these facts demonstrate he has been diligent in pursuing

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this case, but that extraordinary circumstances beyond his control rendered its opening untimely

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(“due to the courts not forwarding his original writ or losing his original writ” (Dkt. No. 17 at3)).

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The court requires additional information to assess petitioner’s contention and respondent’s

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motion to dismiss.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The order to show cause filed March 31, 2011 (Dkt. No. 16) is discharged;

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petitioner’s “motion to proceed” with this action (Dkt. No. 19) is granted.
2. Respondent shall, within twenty-one days after the filing date of this order,

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file a reply to petitioner’s opposition; such reply shall contain a copy of petitioner’s “Mail Card”

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(CDC Form 119) (which itemizes petitioner’s in-coming and out-going legal mail) for the

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relevant period (August 2008 through the present), which respondent shall obtain from

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petitioner’s place of incarceration.

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The address of Fresno’s “new” federal courthouse, opened in 2005, is 2500 Tulare Street,
Suite 1501, Fresno, CA 93721.
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3. The court defers ruling on petitioner’s motion for appointment of counsel (Dkt.

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No. 18), and respondent’s motion to dismiss (Dkt. No. 13).

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DATED: May 6, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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