Gonzales v. Kernan et al

Filing 34

ORDER REOPENING CASE. Signed by Judge Charles R. Breyer on 4/25/07. (Attachments: # 1 Certificate of Service)(be, COURT STAFF) (Filed on 4/25/2007)

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Gonzales v. Kernan et al Doc. 34 Case 3:04-cv-00084-CRB Document 34 Filed 04/25/2007 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Per order filed on April 29, 2005, the court granted petitioner's motion/ request for a stay to permit him to return to state court to exhaust new claims, and instructed the clerk to administratively close the case. The court advised petitioner that "[n]othing further will take place in this matter until petitioner exhausts the new claims, and, within 30 days thereafter, moves to reopen the case, lift the court's stay and amend the stayed petition to add the newlyexhausted claims." Petitioner has filed a "response" to the court's April 29, 2005 order, informing the court that he only recently learned that the state supreme court had denied his claims. He has also attached a proposed first amended petition ("FAP") containing all now-exhausted claims. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ROBERT A. GONZALES, Petitioner, vs. SCOTT KERNAN, Warden, Respondent. ) ) ) ) ) ) ) ) ) ) No. C 04-0084 CRB (PR) ORDER REOPENING CASE Dockets.Justia.com Case 3:04-cv-00084-CRB Document 34 Filed 04/25/2007 Page 2 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Good cause appearing, the clerk is instructed to reopen the case and file the proposed FAP, which contains cognizable claims of ineffective assistance of counsel and prosecutorial misconduct. The stay is hereby lifted. Within 60 days of the issuance of this order, respondent shall file an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. Respondent shall file with the answer and serve on petitioner a copy of all portions of the state trial record that have been transcribed previously and that are relevant to a determination of the issues presented by the petition. If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the court and serving it on respondent within 30 days of his receipt of the answer. Respondent may file a motion to dismiss on procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file with the court and serve on respondent an opposition or statement of nonopposition within 30 days of receipt of the motion, and respondent shall file with the court and serve on petitioner a reply within 15 days of receipt of any opposition. Petitioner is reminded that all communications with the court must be served on respondent by mailing a true copy of the document to respondent's counsel. Petitioner must also keep the court and all parties informed of any change of address. SO ORDERED. DATED: April 25, 2007 CHARLES R. BREYER United States District Judge 2

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