Toerpe v. Duffy

Filing 19

ORDER signed by Magistrate Judge Dennis M. Cota on 06/05/19 DENYING 17 petitioner's motion. (Plummer, 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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TROY N. TOERPE,

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No. 2:18-CV-0093-TLN-DMC-P

Petitioner,

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v.

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BRIAN DUFFY,

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ORDER

Respondent.

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Petitioner, a state prisoner proceeding with retained counsel, brings this petition

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for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner’s

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“Notice of Motion and Motion to Reopen Case – Error of Allowing Counsel for Respondent to

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Move to Dismiss Case in Violation of Commanding U.S. Supreme Court Governing Decision”

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(ECF No. 17).

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At the outset, the court notes that petitioner does not seek any specific relief by

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way of the current motion. While petitioner states he would like the case re-opened, this request

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is puzzling given that the case has not been closed. To the extent petitioner seeks to re-open

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briefing on respondent’s motion to dismiss, which was submitted on the briefs without oral

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argument following petitioner’s failure to file a timely opposition, petitioner has not demonstrated

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good cause for such relief by explaining why he was unable to file a timely opposition. Further, it

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appears petitioner’s motion is based on a misinterpretation of the court’s prior order directing
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respondent to file a response to the petition. In his motion, petitioner’s counsel states: “I believe

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that this U.S. Magistrate Judge did not issue a specific order to counsel for the State of California

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to reply specifically to the contents of the 28 U.S.C. 2254 petition. . . .” Contrary to counsel’s

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belief, on October 24, 2018, the undersigned issued an order directing respondent to respond to

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the petition, allowing respondent to either file a responsive motion or an answer under Rule 5 of

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the Federal Rules Governing Section 2254 Cases.
Accordingly, IT IS HEREBY ORDERED that petitioner’s motion (ECF No. 17) is

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denied.

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Dated: June 5, 2019
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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