Steele v. Katavich

Filing 19

ORDER signed by District Judge Troy L. Nunley on 5/13/2016 NOT ADOPTING 18 Findings and Recommendations; DENYING 11 Motion to Dismiss relative to the grounds that the petition was not timely filed; REFERRING this matter back to Magistrate Judge Kendall J. Newman for consideration of the alternative grounds for dismissal stated in the respondent's motion. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JUSTIN STEELE,

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Petitioner,

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No. 2:15-cv-1836 TLN KJN P

v.

ORDER

JOHN N. KATAVICH, Warden,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate

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Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On April 6, 2016, the magistrate judge filed findings and recommendations herein which

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were served on all parties and which contained notice to all parties that any objections to the

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findings and recommendations were to be filed within fourteen days. Neither party has filed

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objections to the findings and recommendations.

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The Court has reviewed the file and finds equitable tolling shall extend the date for

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Petitioner to file a petition of habeas corpus, until thirty days past service of the magistrate

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judge’s September 3, 2015 order (ECF No. 3), on the basis that Petitioner was “affirmatively

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misled” by the court’s order.1 See Sossa v. Diaz, 729 F.3d 1225, 1231–1235 (9th Cir. 2015).

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That order stated in part:

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Petitioner filed his habeas petition on September 22, 2015. (ECF No. 4; ECF No. 18 at 8.)

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Therefore, Petitioner’s filing was timely. Accordingly, it is hereby ordered that:

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1. The findings and recommendations filed April 6, 2016 (ECF No. 18), are not adopted;

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2. Respondent’s motion to dismiss (ECF No. 11) is DENIED relative to the grounds that

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the petition was not timely filed; and
3. The matter is referred back to the magistrate judge for consideration of the alternative
grounds for dismissal stated in Respondent’s motion, which the magistrate judge did not reach.

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Dated: May 13, 2016

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Troy L. Nunley
United States District Judge

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Within thirty days from the date of service of this order, petitioner shall file a
petition that complies with the requirements of the Rules Governing Section 2254
Cases, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the
petition must bear the docket number assigned this case; petitioner must file an
original and two copies of the petition.

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(ECF No. 3 at 2.)

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