Sunday v. Sisto

Filing 12

ORDER by Judge Saundra Brown Armstrong GRANTING 9 Motion for Third Extension of Time to Complete Discovery; DENYING AS UNNECESSARY 11 Motion to Set Aside. Plaintiff's opposition extended to (45) forty-five days from the date of this Order. Respondent's reply due (15) fifteen-days from the date of this Order. (lrc, COURT STAFF) (Filed on 5/21/2009) Modified on 5/22/2009 (jlm, COURT STAFF).

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner, a state prisoner, filed a pro se petition for a writ of habeas corpus. The Court directed Respondent to file an answer to the petition and granted Petitioner leave to file a traverse within thirty days after the answer was filed. In lieu of filing an answer, Respondent has filed a motion to dismiss the instant petition as untimely under 28 U.S.C. § 2244(d), the statute of limitations established by the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996. Petitioner has not filed an opposition to the motion to dismiss. On October 16, 2008, the Court granted Petitioner an extension of time to file an opposition. On November 4, 2008, the Court granted Petitioner a second extension of time to file an opposition. Before the Court is Petitioner's third request for an extension of time to file an opposition to Respondent's motion to dismiss. Also before the Court are Petitioner's motion for the Court to issue an Order "Re: Production of Documentary Evidence of Lockdowns at C.S.P. - Calipatria" and another motion entitled "Motion Pursuant to Fed. R. Civ. P. 60(b)(1)," which will both be construed as motions related to his request for an extension of time to file his opposition. Petitioner requests an extension of time in order "to obtain the necessary materials to defend against the government's allegation that his federal habeas petition is time-barred." (Mot. Pursuant to Fed. R. Civ. P. 60(b)(1) at 3.) He claims that he has requested "C.S.P. - Calipatria's legal coordinator to produce documentation evincing: when the prison was on lockdown between October v. D. K. SISTO, Warden, Respondent. / ROMAN SUNDAY, Petitioner, No. C 07-05308 SBA (PR) ORDER GRANTING THIRD EXTENSION OF TIME FOR PETITIONER TO FILE OPPOSITION TO MOTION TO DISMISS AND ADDRESSING PENDING MOTIONS (Docket nos. 9, 11) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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1, 2005 through December 12, 2006." (Mot. for EOT at 1.) However, he has received no response to his request. (Id.) Thus, he claims he "cannot attempt to compile . . . [an] opposition without such documentary evidence, as one of the predicates of Petitioner's equitable tolling argument is based on no law library access during lockdowns." (Id. (citing Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc)) (emphasis in original).)

The AEDPA, which became law on April 24, 1996, imposed a statute of limitations on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging non-capital state convictions or sentences must be filed within one year of the latest of the date on which: (1) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (2) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) the factual predicate of the claim could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1). The petition may nonetheless be timely if the limitations period was tolled under 28 U.S.C. § 2244(d)(2) for a substantial period of time. The Ninth Circuit holds that the one-year limitation period can be equitably tolled because § 2244(d) is a statute of limitations and not a jurisdictional bar. See Beeler, 128 F.3d at 1288. Here, Petitioner alleges that he is entitled to equitable tolling; however, he is unable to make his equitable tolling argument without documents relating to lockdowns at C.S.P. - Calipatria between October 1, 2005 through December 12, 2006. He claims that he has been unsuccessful in obtaining these documents from the prison's "legal coordinator." (Mot. for EOT at 1.) Because Petitioner is incarcerated and has alleged difficulty in obtaining necessary documents, the Court finds that he must be given the opportunity to view the aforementioned documents in order to respond to Respondent's motion to dismiss. In order to expedite matters, no later than fourteen (14) days from the date of this Order, counsel for Respondent shall take steps to see that the appropriate 2

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authorities provide Petitioner with copies of the documents relating to lockdowns at C.S.P. Calipatria between October 1, 2005 through December 12, 2006. In light of this, the Court GRANTS Petitioner a third extension of time in which to file his opposition to Respondent's motion to dismiss. The parties shall abide by the briefing schedule outlined below. Petitioner's motion for the Court to issue an Order "Re: Production of Documentary Evidence of Lockdowns at C.S.P. - Calipatria" and his motion entitled "Motion Pursuant to Fed. R. Civ. P. 60(b)(1)" are DENIED as unnecessary. CONCLUSION 1. No later than fourteen (14) days from the date of this Order, counsel for Respondent

shall take steps to see that the appropriate authorities provide Petitioner with copies of the documents relating to lockdowns at C.S.P. - Calipatria between October 1, 2005 through December 12, 2006. 2. Petitioner's motion for the Court to issue an Order "Re: Production of Documentary

Evidence of Lockdowns at C.S.P. - Calipatria" (docket no. 9) and his motion entitled "Motion Pursuant to Fed. R. Civ. P. 60(b)(1)" (docket no. 11) are DENIED as unnecessary. 3. Petitioner's motion for a third extension of time in which to file his opposition to

Respondent's motion to dismiss (docket no. 9) is GRANTED. The time in which Petitioner may file his opposition to Respondent's motion to dismiss will be extended up to and including forty-five (45) days from the date of this Order. Respondent shall file a reply brief no later than fifteen (15) days after the date Petitioner's opposition is filed. No further extensions of time will be granted in this case absent exigent circumstances. 4. This Order terminates Docket nos. 9 and 11.

IT IS SO ORDERED. DATED: 5/19/09 SAUNDRA BROWN ARMSTRONG UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ROMAN SUNDAY, Plaintiff, v. D.K. SISTO et al, Defendant. /

Case Number: CV07-05308 SBA CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on May 21, 2009, 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.

Roman Sunday California State Prison - Solano V-11338 P.O. Box 4000 Vacaville, CA 95696-4000 Dated: May 21, 2009 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

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