Poplar v. Biter

Filing 22

ORDER signed by Judge John A. Mendez on 4/11/13 ORDERING that petitioner's 14 motion of counter claims is construed as further briefing in support of the petition. (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NATHANIEL POPLAR,

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Petitioner,

No. 2: 12-cv-1368 JAM KJN P

Respondent.

ORDER

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vs.
M. BITER,

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/
Petitioner is a state prisoner, proceeding without counsel, with a petition for writ

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of habeas corpus pursuant to 28 U.S.C. § 2254. On November 21, 2012, respondent filed an

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answer to the petition. On December 17, 2012, petitioner filed a reply to the answer. The

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petition is now submitted for decision.

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On September 26, 2012, petitioner filed a “motion counter claims Federal Rules

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of Civil Procedure, Rule 13.” In this motion, petitioner requests that the criminal charges against

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him be dismissed because the state court lacked jurisdiction. In particular, petitioner argues that

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there was insufficient evidence to support the gang enhancement based on his statement to the

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victim, “My kids got to eat.” The court construes petitioner’s September 26, 2012 motion as

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further briefing in support of his claim alleging insufficient evidence to support the gang

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enhancement. The court will consider the arguments raised in petitioner’s September 26, 2012
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motion at the time it considers the merits of the petition.

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Accordingly, IT IS HEREBY ORDERED that petitioner’s September 26, 2012

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motion of counter claims (Dkt. No. 14) is construed as further briefing in support of the petition.

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DATED: April 11, 2013

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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pop1368.ord

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