Carter v. Asuncion

Filing 19

ORDER by Judge James Donato granting 18 Motion for Extension of Time to File. (lrcS, COURT STAFF) (Filed on 1/18/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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HAROLD CARTER,

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Petitioner,

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ORDER GRANTING EXTENSION

v.

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Re: Dkt. No. 18
DEBBIE ASUNCION,

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Respondent.

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United States District Court
Northern District of California

Case No. 16-cv-07167-JD

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GOOD CAUSE APPEARING, it is hereby ordered that respondent’s request for an

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extension of time (Docket No. 18) is GRANTED. Respondent shall file the briefing by February

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17, 2018. Petitioner is again reminded that he must file the supplemental briefing as discussed in

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the October 26, 2017, Order. Plaintiff must address if the case is timely and if this is a mixed

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petition and found to be timely, if he seeks a stay or to proceed with the exhausted claims.1
IT IS SO ORDERED.

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Dated: January 18, 2018

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JAMES DONATO
United States District Judge

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The general rule is that a federal district court must dismiss a federal habeas petition containing
any claim for which state remedies have not been exhausted. See Rose v. Lundy, 455 U.S. 509,
522 (1982). When faced with a post-AEDPA mixed petition, the Court must sua sponte inform
the habeas petitioner of the mixed petition deficiency and provide him an opportunity to amend
the mixed petition by striking unexhausted claims as an alternative to the Court dismissing the
petition. Jefferson v. Budge, 419 F.3d 1013, 1016 (9th Cir. 2005) (citing Rhines v. Weber, 544
U.S. 269, 277 (2005)) (court’s erroneous dismissal of mixed petition entitled petitioner to
equitable tolling of one-year AEDPA statute of limitations from the date the first habeas petition
was dismissed until the date the second habeas petition was filed). Petitioner may also seek to
stay the petition while he exhausts the remaining claims.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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HAROLD CARTER,

Case No. 16-cv-07167-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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DEBBIE ASUNCION,
Defendant.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

United States District Court
Northern District of California

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That on January 18, 2018, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Harold Carter
G13886
P.O. Box 5101
Delano, CA 93216

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Dated: January 18, 2018

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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