Weisner v. Evans et al
ORDER DENYING MOTION TO DISMISS AND SETTING BRIEFING SCHEDULE: Denying 6 motion to dismiss. If respondent chooses to file a new motion to dismiss, he must file and serve his motion to dismiss no later than 2/13/09. Petitioner's opposition i s due 3/13/09. Respondent's optional reply brief is due 3/27/09. If respondent chooses NOT to file a new motion to dismiss, he must file and serve his answer to the petition for writ of habeas corpus no later than 3/6/09. Petitioner's traverse is due 4/17/09. Signed by Judge Susan Illston. (SI, COURT STAFF) (Filed on 1/26/2009) (Additional attachment(s) added on 1/28/2009: # 1 cs) (ys, COURT STAFF).
1 2 3 4 5 6 7 8 9 10 11 12 United States District Court For the Northern District of California 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
WILLIAM WEISNER, Petitioner, v. M. S. EVANS, warden, Respondent. /
No. C 07-5509 SI (pr) ORDER DENYING MOTION TO DISMISS AND SETTING BRIEFING SCHEDULE
Respondent has moved to dismiss the petition for writ of habeas corpus in this action as untimely filed. Respondent's motion fails to take into account the first state habeas petition filed by petitioner. This error is evident from the fact that respondent's Exhibit 1 (last page) is an order from the Alameda County Superior Court denying a habeas petition on November 29, 2005, which predates the date (i.e., January 20, 2006) on which respondent states that petitioner's first state habeas petition was filed in that court. Because respondent did not take into account that first habeas petition, and because this court has no information about when it was filed so as to be able to determine how many days of tolling to permit based on its pendency, respondent's motion to dismiss is DENIED. (Docket # 6.) This denial is without prejudice to respondent filing a new motion if he believes that, taking into account the first state habeas petition, the federal petition is still untimely. In order to move this case toward resolution, the court now sets the following briefing schedule: If respondent chooses to file a new motion to dismiss, he must file and serve his motion to dismiss no later than February 13, 2009. Petitioner must file and serve his opposition not later than March 13, 2009. Respondent must file and serve his reply brief, if any, no later than
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March 27, 2009. If respondent chooses not to file a new motion to dismiss, he must file and serve his answer to the petition for writ of habeas corpus no later than March 6, 2009. Petitioner must file and serve his traverse no later than April 17, 2009. IT IS SO ORDERED. DATED: January 26, 2009 SUSAN ILLSTON United States District Judge
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