Girley v. Swarthout

Filing 42

ORDER signed by Magistrate Judge Kendall J. Newman on 4/3/14 denying without prejudice 40 Motion ; Petitioner is granted twenty-one days in which to file a reply to respondents answer. (Dillon, M)

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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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No. 2:12-cv-1938 KJM KJN P

Petitioner,
v.

ORDER

GARY SWARTHOUT,

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Respondent.

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

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corpus. On February 28, 2014, petitioner’s motion for stay and to amend was denied, and

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petitioner was granted thirty days in which to file a reply to respondent’s answer. On March 27,

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2014, under the mailbox rule, petitioner filed a document addressed to the San Joaquin County

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Superior Court and styled, “Petition for Rehearing Request for DNA Testing.” (ECF No. 40.)

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The filing is directed to the judge of the San Joaquin County Superior Court and the District

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Attorney, and petitioner seeks “rehearing and reconsideration of its opinion March 7, 2012.”

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(ECF No. 40.)

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It appears petitioner mailed the March 27, 2012 filing to the wrong court. No opinion

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issued from this court on or about March 7, 2012; indeed, this action was not opened until July

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24, 2012. Moreover, the claims contained in the petition do not relate to DNA evidence. (ECF

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No. 1.) If petitioner seeks rehearing or reconsideration of an opinion issued by the San Joaquin
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County Superior Court, petitioner should file his motion in the San Joaquin County Superior

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Court. In an abundance of caution, petitioner will be granted an additional twenty-one days in

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which to file a reply to respondent’s answer.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion (ECF No. 40) is denied without prejudice; and

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2. Petitioner is granted twenty-one days in which to file a reply to respondent’s answer.

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Dated: April 3, 2014

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/girl1938.eot

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