Audette v. Arnold

Filing 31

ORDER signed by Magistrate Judge Allison Claire on 8/3/2017 ORDERING, within 7 days, respondent shall file and serve a "supplemental reply" that addresses petitioner's habeas claims premised on the allegedly improper assessment of hi s prior convictions, as reflected in the subject discovery, and the relevance of these matters to respondent's pending motion to dismiss. Within 14 days after service of respondent's supplemental reply, petitioner shall file and serve his "surreply" in opposition to respondent's motion to dismiss. No extensions of time will be granted. Petitioner's 28 motion to compel discovery is DENIED as moot. (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARLTON LEE AUDETTE, 12 Petitioner, 13 14 v. No. 2:16-cv-1256 JAM AC P ORDER ERIC ARNOLD, Warden, 15 Respondent. 16 By order filed May 12, 2017, the court granted respondent’s second request for extended 17 18 time to file and serve a reply to petitioner’s opposition to respondent’s pending motion to dismiss 19 this action on the grounds that it is successive and untimely filed. See ECF No. 25. The court 20 also granted petitioner’s request for discovery, and directed respondent to include in his reply a 21 verified copy of petitioner’s prior convictions including his “actual discharge date.” Id. 22 Petitioner was accorded the opportunity to file a surreply within thirty days after service of 23 respondent’s reply. Respondent filed his reply on June 9, 2017. See ECF No. 27. The reply did not include 24 25 the discovery ordered by the court. Respondent noted in his reply that the subject documents had 26 not been received and “do not appear to be needed for the adjudication of Respondent’s motion to 27 dismiss nor are they discussed in this reply.” Id. at 2 n.2. 28 //// 1 On July 10, 2017, petitioner filed a motion to compel production of the court-ordered 2 discovery and for sanctions. See ECF No. 28. On July 14, 2017, respondent submitted the court- 3 ordered discovery without substantive comment. See ECF No. 29. Petitioner has now filed a 4 “reply” noting respondent’s delay in producing the discovery and failure to address petitioner’s 5 arguments premised on the calculation of his prior convictions, and requesting additional time to 6 file his surreply. See ECF No. 30. Petitioner received the discovery on or before July 24, 2017,1 7 the date he signed his most recent filing, and requests thirty days to file his surreply. Id. 8 Petitioner will be granted additional time, subject to the shortened briefing schedule set forth 9 below. 10 The undersigned notes that respondent failed to abide by the court’s order filed May 12, 11 2017. Respondent’s counsel is admonished that he should have sought a third extension of time 12 to file a comprehensive reply that included production of the discovery documents and addressed 13 the relevance of those documents to petitioner’s claims and respondent’s motion to dismiss. 14 Nevertheless, sanctions are not warranted at this time. 15 For good cause shown, IT IS HEREBY ORDERED that: 16 1. Respondent shall, within seven (7) days after the filing date of this order, file and serve 17 a “supplemental reply” that addresses petitioner’s habeas claims premised on the allegedly 18 improper assessment of his prior convictions, as reflected in the subject discovery, and the 19 relevance of these matters to respondent’s pending motion to dismiss. 20 21 2. Petitioner shall, within fourteen (14) days after service of respondent’s supplemental reply, file and serve his “surreply” in opposition to respondent’s motion to dismiss. 22 3. No extensions of time will be granted. 23 4. Petitioner’s motion to compel discovery, ECF No. 28, is denied as moot. 24 DATED: August 3, 2017 25 26 27 28 1 The proffered certificate of service for this discovery, dated July 13, 2017, reflects service in a different case. See ECF No. 29-4 at 1. 2

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