Girley v. Swarthout

Filing 22

ORDER signed by Magistrate Judge Kendall J. Newman on 5/17/13 ORDERING that within fourteen days from the date of this order, respondent shall (a) inform the court he will withdraw the motion to dismiss or (b) file a reply to petitioners objections.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DOUGLAS DWAYNE GIRLEY,

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Petitioner,

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vs.

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No. 2:12-cv-1938 KJN P

GARY SWARTHOUT,

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Respondent.

ORDER
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By findings and recommendations filed March 26, 2013, the court found that the

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petition for writ of habeas corpus was filed four days, or alternatively one day, beyond the statute

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of limitations period, and recommended that respondent’s motion to dismiss be granted.

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However, on April 22, 2013, petitioner filed an untimely opposition to the motion to dismiss,

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which this court construes as objections to the findings and recommendations. In his filing,

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petitioner claims that he relinquished his petition for writ of habeas corpus and application to

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proceed in forma pauperis to prison officials on July 11, 2012, and that after that date he had no

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control over the date the documents were actually mailed to the court. Moreover, petitioner

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provided a copy of the prison legal mail log for the relevant period, and, despite the fact that the

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court received the petition for writ of habeas corpus on July 24, 2012, there is no record of prison

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officials mailing such petition to the court.
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In light of petitioner’s filing, using the July 11, 2012 date as the date petitioner

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handed his filing to prison officials for mailing, or granting petitioner equitable tolling for the

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period between July 11, 2012 and July 24, 2012, based on petitioner’s belief that he had no

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further control over the filing, or based on prison officials’ failure to record the actual mailing of

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the petition, it appears the petition was filed within the limitations period. Thus, the court will

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grant respondent fourteen days in which to (a) inform the court he will withdraw the October 19,

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2012 motion to dismiss, or (b) file a reply to petitioner’s April 22, 2013 objections.

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Accordingly, IT IS HEREBY ORDERED that within fourteen days from the date

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of this order, respondent shall (a) inform the court he will withdraw the motion to dismiss or (b)

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file a reply to petitioner’s objections.

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DATED: May 17, 2013

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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