Dye v. Barnes

Filing 69

STIPULATION AND ORDER signed by Magistrate Judge Edmund F. Brennan on 09/19/14 ordering as to 63 MOTION to DISMISS ( Motion Hearing continued to 10/29/2014 at 10:00 AM in Courtroom 8 (EFB) before Magistrate Judge Edmund F. Brennan.) (Plummer, M)

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1 2 3 4 5 6 BARRY MORRIS, SBN #48368 Attorney at Law 1220 Oakland Blvd. #200 Walnut Creek, CA 94596 (925) 934-1100 fax: (925) 934-1122 barrymorris@mac.com Attorney for Petitioner WILLIAM R. DYE 7 UNITED STATES DISTRICT COURT 8 9 10 11 12 13 14 EASTERN DISTRICT OF CALIFORNIA WILLIAM R. DYE, Petitioner, v. FRED FOULK, Warden, Respondent./ 15 16 17 18 19 20 21 22 23 24 25 No. 2:12-cv-02201 TLN-EFB Stipulation and Order IT IS HEREBY STIPULATED between BARRY MORRIS, attorney for petitioner, WILLIAN R. DYE, and MAX FEINSTAT, attorney for respondent FRED FOULK, that the hearing on respondent’s Motion to Dismiss be continued from October 8, 2014 to October 29, 2014. This stipulation is based upon the attached declaration of BARRY MORRIS. Dated: September 15, 2014 /s/ Barry Morris Attorney for Petitioner WILLIAM R. DYE 26 27 28 /s/Max Feinstat Attorney for Respondent FRED FOULK 1 1 2 3 4 Declaration of Barry Morris I, BARRY MORRIS, do hereby declare under penalty of perjury that the following is true and correct: 1. I am an attorney licensed to practice law in all the courts of the State 5 of California, the United States District Court for the Northern, Central, and 6 Eastern Districts of California, the United States Court of Appeals for the Ninth 7 Circuit, and the United States Supreme Court. I represent the petitioner in the 8 above-entitled action; 9 2. I am in the process of preparing a response to Respondent’s Motion 10 to Dismiss. Initially I concentrated on the relation-back issue, but as I turned 11 my attention to newly-discovered evidence issue (§2244(d)(1)(D) “the date on 12 which the factual predicate of the claim or claims presented could have been 13 discovered through the exercise of due diligence”), I realized that I did not have 14 all the necessary documents including those referred to by petitioner in his pro 15 se first amended petition. 16 3. I wrote to petitioner at the beginning of this month for those 17 documents, but as of this past Friday, I had not received them. 18 planning on going to Tahoe that weekend, I drove up to Susanville to see 19 petitioner. It turned out that he was in administrative segregation and did not 20 have his legal papers. I went through what I need and he told me that he will 21 request those documents and send them to me within the next week. 22 4. Since I was I am leaving this Friday for a week and will not be able to begin 23 working with those documents to finish the opposition to the motion to dismiss 24 until I get back on September 27th. 25 26 5. Consequently I am asking that the hearing on respondent’s motion go over until October 29, 2014. Respondent has no objection to this request. 27 28 2 1 2 Dated: September 16, 2014 /s/Barry Morris BARRY MORRIS Attorney for Petitioner WILLIAM R. DYE 3 4 5 Order 6 7 GOOD CAUSE APPEARING THEREFOR, it is hereby ordered that the 8 hearing on Respondent’s Motion to Dismiss in the above-entitled case be 9 continued from October 8, 2014 to October 29, 2014 at 10:00 a.m. 10 Dated: September 19, 2014. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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