Jameson v. Yates

Filing 13

ORDER by Judge ARMSTRONG withdrawing 9 Motion to Dismiss (lrc, COURT STAFF) (Filed on 9/9/2008)

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA BARRY SIMON JAMESON, ) ) ) Petitioner, ) ) v. ) ) ) JAMES A. YATES, Warden, ) ) Respondent. ________________________________ ) No. C 07-03160 SBA (PR) ORDER GRANTING RESPONDENT'S REQUEST TO WITHDRAW MOTION TO DISMISS; TERMINATING MOTION TO DISMISS; AND SETTING BRIEFING SCHEDULE (Docket no. 9)

Petitioner filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254. Respondent

12 filed a motion to dismiss the habeas corpus petition as unexhausted (docket no. 9). Petitioner filed an 13 opposition to the motion to dismiss. 14 Respondent now seeks to withdraw his motion to dismiss in view of evidence that Petitioner 15 has exhausted his state court remedies as to the claims in his petition (docket no. 11). Respondent 16 also requests an opportunity to file another motion to dismiss. Petitioner has filed a response to the 17 reply indicating that he objects to Respondent's request for leave to file another motion to dismiss. 18 Respondent's request to withdraw his motion to dismiss is GRANTED. Accordingly, the 19 motion to dismiss (docket no. 9) is hereby WITHDRAWN and TERMINATED. The Court now sets 20 a new schedule below for the parties to file their briefs pursuant to the September 4, 2007 Order to 21 Show Cause. The Court also GRANTS Respondent leave to file another motion to dismiss on 22 procedural grounds other than exhaustion, in lieu of an Answer. 23 24 The Court orders the following briefing schedule: 1. Respondent shall file with this Court and serve upon Petitioner, within sixty (60) days

25 of the issuance of this Order, an Answer conforming in all respects to Rule 5 of the Rules Governing 26 Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued. Respondent 27 shall file with the Answer a copy of all portions of the relevant state records that have been 28 transcribed previously and that are relevant to a determination of the issues presented by the petition. 2. If Petitioner wishes to respond to the Answer, he shall do so by filing a Traverse with

1 the Court and serving it on Respondent within thirty (30) days of his receipt of the Answer. Should 2 Petitioner fail to do so, the petition will be deemed submitted and ready for decision thirty (30) days 3 after the date Petitioner is served with Respondent's Answer. 4 3. Respondent has also been granted leave to file a motion to dismiss on procedural 5 grounds other than exhaustion, in lieu of an Answer, as set forth in the Advisory Committee Notes to 6 Rule 4 of the Rules Governing Section 2254 Cases. If Respondent files such a motion, Petitioner 7 shall file with the Court and serve on Respondent an opposition or statement of non-opposition to the 8 motion within thirty (30) days of receipt of the motion, and Respondent shall file with the Court and 9 serve on Petitioner a reply within fifteen (15) days of receipt of any opposition. 10 United States District Court For the Northern District of California 4. It is Petitioner's responsibility to prosecute this case. Petitioner must keep the Court

11 and Respondent informed of any change of address and must comply with the Court's orders in a 12 timely fashion. Petitioner must also serve on Respondent's counsel all communications with the 13 Court by mailing a true copy of the document to Respondent's counsel. 14 5. Extensions of time are not favored, though reasonable extensions will be granted.

15 Any motion for an extension of time must be filed no later than ten (10) days prior to the deadline 16 sought to be extended. 17 18 6. This Order terminates Docket no. 9.

IT IS SO ORDERED. SAUNDRA BROWN ARMSTRONG United States District Judge

19 DATED: 9/5/08 20 21 22 23 24 25 26 27 28

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1 UNITED STATES DISTRICT COURT 2 FOR THE 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 6 BARRY SIMON JAMESON, 7 8 v. Plaintiff, Case Number: CV07-03160 SBA CERTIFICATE OF SERVICE

9 JAMES A. YATES et al, 10 United States District Court For the Northern District of California 11 Defendant. /

12 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 13 That on September 9, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said 14 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 15 in the Clerk's office. 16 17 18 Barry Simon Jameson CDCR # C88511 Pleasant Valley State Prison 19 California Department of Corrections and Rehabilitation Post Office Box 8502 20 Coalinga, CA 93210-8502 21 22 23 24 25 26 27 28 Dated: September 9, 2008

Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

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