Harris v. Uribe

Filing 83

ORDER signed by Magistrate Judge Allison Claire on 8/4/16 ORDERING that 69 Motion to Dismiss and the August 10, 2016 hearing on the motion are VACATED. Respondent shall have 30 days from service of this order to file a new motion to dismiss with briefing to be completed as set forth in Local Rule 230(c) and (d).(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WAYDE HOLLIS HARRIS,

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Petitioner,

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v.

No. 2:12-cv-1502 AC P

ORDER

DOMINGO URIBE, JR.,

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Respondent.

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Currently before the court is respondent’s fully briefed motion to dismiss, which is set for

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hearing on August 10, 2016.
In reviewing the briefing on the motion, the court notes that respondent argues for the first

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time in his reply that the claims in the amended petition are untimely. ECF No. 82. While the

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motion to dismiss claims, in a footnote, that timeliness issues “seem[] likely,” respondent also

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states in his moving papers that it is “premature to assert that Petitioner’s new claims are

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untimely” and does not brief the issue. ECF No. 69 at 8 n.2. Presumably in response to that

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footnote, petitioner makes a very brief argument that for the same reasons there has not been

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intentional delay,1 equitable tolling should apply and “any purported failure to meet the one year

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Although petitioner addressed the intentional delay factor of the test established in Rhines v.
Weber, 544 U.S 269 (2005), he also asserts that a stay is no longer necessary because his new
claims have been exhausted. ECF No. 78 at 3-5.
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statute of limitations under AEDPA should be excused.” ECF No. 78 at 3-6. Petitioner’s brief

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response to respondent’s passing comment that the new claims are “likely” untimely does not

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justify the extensive briefing on the statute of limitations issue that respondent now submits in his

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reply (ECF No. 82 at 8-25). See Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1176 (9th Cir.

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1996) (improper to raise arguments for the first time in reply brief). However, because the issue

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may be dispositive, the court will consider briefing on the matter. To promote judicial efficiency

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and a more expeditious resolution of the matter, the court will vacate the current motion to

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dismiss and respondent will be given an opportunity to file a single, comprehensive motion to

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dismiss.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Respondent’s motion to dismiss and the August 10, 2016 hearing on the motion are

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VACATED.
2. Respondent shall have thirty days from service of this order to file a new motion to

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dismiss with briefing to be completed as set forth in Local Rule 230(c) and (d).

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DATED: August 4, 2016

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