Sunday v. Sisto

Filing 19

ORDER by Judge ARMSTRONG denying 6 Motion to Dismiss (lrc, COURT STAFF) (Filed on 9/30/2009)

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 v. D. K. SISTO, Warden,

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ROMAN SUNDAY, SR., Petitioner, No. C 07-05308 SBA (PR) ORDER DENYING WITHOUT PREJUDICE RESPONDENT'S MOTION TO DISMISS PETITION AS UNTIMELY AND SETTING BRIEFING SCHEDULE (Docket no. 6) /

Respondent.

Petitioner Roman Sunday, Sr., a state prisoner, filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the Court is Respondent's motion to dismiss on the ground that it is time-barred under 28 U.S.C. § 2244(d), the statute of limitations set by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Petitioner filed an opposition to the motion. Respondent filed a reply. Petitioner filed a response to the reply. Having considered all of the papers filed by the parties, the Court DENIES Respondent's motion to dismiss without prejudice to refiling it and addressing the equitable tolling issues below. BACKGROUND On August 13, 2002, a Contra Costa County jury convicted Petitioner of first degree murder, kidnaping of a child under the age of fourteen, and unlawful possession of a firearm by a felon. Furthermore, the jury found the associated firearm use allegations to be true. On September 12, 2003, the trial court found that Petitioner had two previous serious felony convictions and sentenced him to state prison for the total indeterminate term of eighty-six years to life. On June 22, 2005, the California Court of Appeal affirmed Petitioner's conviction. (Resp't Ex. A.) On October 12, 2005, the California Supreme Court denied his petition for review. (Resp't Ex. B.) On November 13, 2006, Petitioner filed a habeas petition in the Santa Clara County Superior Court. (Resp't Ex. C.) The court denied the petition on December 21, 2006. (Id.) On April 16, 2007, Petitioner filed a habeas petition California Court of Appeals. (Resp't Ex. D.) The court

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denied the petition on April 16, 2007. (Id.) On April 26, 2007, Petitioner filed a habeas petition in the California Supreme Court. (Resp't Ex. E.) The supreme court denied the petition for review on September 12, 2007. On October 11, 2008,1 Petitioner filed the instant federal habeas petition. The federal court file stamped the petition on June 16, 2008. DISCUSSION The AEDPA, which became law on April 24, 1996, imposes 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). A state prisoner with a conviction finalized after April 24, 1996, such as Petitioner, must satisfy the AEDPA statute of limitations. See Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1286 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc). The one-year period generally runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). "Direct review" includes the period within which a petitioner can file a petition for

A pro se federal or state habeas petition is deemed filed on the date it is delivered to prison authorities for mailing. See Saffold v. Newland, 250 F.3d 1262, 1268 (9th Cir. 2000), vacated and remanded on other grounds, Carey v. Saffold, 536 U.S. 214 (2002) (holding that a federal or state habeas petition is deemed filed on the date the prisoner submits it to prison authorities for filing, rather than the date it is received by the courts). October 11, 2008 is the date Petitioner's federal habeas petition was signed and the earliest date that the petition could have been delivered to prison authorities for mailing; therefore, it will be deemed filed on that date.
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a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). Accordingly, if a petitioner fails to seek a writ of certiorari from the United States Supreme Court, the AEDPA's one-year limitations period begins to run on the date the 90-day period defined by Supreme Court Rule 13 expires. See Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002). The one-year period is calculated according to the general rule for counting time in federal courts, Rule 6(a) of the Federal Rules of Civil Procedure. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). That is, "the day of the act, event, or default from which the designated period of time begins to run shall not be included" in the one-year limitations period. Fed. R. Civ. P. 6(a). This is referred to as the "anniversary method" because, absent any tolling, the expiration date of the limitations period will be the same date as the triggering event in the following year. Patterson, 251 F.3d at 1246. In this case, Petitioner's conviction became final on January 10, 2006, when the time to file a petition for a writ of certiorari in the Supreme Court expired. Accordingly, Petitioner was required to file his federal habeas petition no later than January 10, 2007. See 28 U.S.C. § 2244(d). Therefore, his petition filed on October 11, 2008 -- one year and nine months after the limitations period had expired -- is untimely absent tolling. I. Statutory Tolling AEDPA's one-year limitation period is tolled under § 2244(d)(2) for the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2)). This includes the time between a lower state court's decision and the filing of a notice of appeal to a higher state court. Carey v. Saffold, 536 U.S. 214, 219-221 (2002). In California, where prisoners generally use the state's "original writ system," this means that the limitation period remains tolled during the intervals between a state court's disposition of an original state habeas petition and the filing of a further original state habeas petition in a higher court, provided the prisoner did not delay unreasonably in seeking review in the higher court. See id. at 220-23; see also Nino v. Galaza, 183 F.3d 1003, 1005

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(9th Cir. 1999) (limitation period "remains tolled during the intervals between the state court's disposition of a state habeas petition and the filing of a petition at the next state appellate level"). After Carey, a state habeas petition is pending "in the absence of undue delay," while a California petitioner "complete[s] a full round of [state] collateral review" all the way to the California Supreme Court. Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003) (citation and internal quotations marks omitted). But if there is any gap between the completion of one round of review and the commencement of another round of state habeas review, the petitioner is not entitled to tolling during the gap. See id. at 1046-47, 1048; see also Dils v. Small, 260 F.3d 984, 986 (9th Cir. 2001) (not tolling limitation period during gap between successive state habeas petitions filed in the same court). Respondent correctly notes that after Petitioner's process of direct review came to an end on January 10, 2006, Petitioner allowed the one-year limitation period to run for 307 days until he filed his first habeas petition in the Santa Clara County Superior Court on November 13, 2006. Under Carey and its progeny, the one-year limitation period could be tolled under § 2244(d)(2) until the California Supreme Court denied Petitioner's round of state habeas review on September 12, 2007. After the California Supreme Court denied Petitioner's habeas petition on September 12, 2007, Petitioner had fifty-eight days left (365 days - 307 days) to file a federal habeas petition on time. If Petitioner were entitled to statutory tolling the entire time he completed a full round of state collateral review, then he timely filed his federal habeas petition twenty-nine days later, on October 11, 2007. Respondent claims that Petitioner is not entitled to any statutory tolling in connection with Petitioner's habeas petitions to the state appellate and supreme courts. Respondent argues that Petitioner's appellate court petition -- filed almost four months after the superior court denied his petition -- was not "properly filed" within the meaning of § 2244(d)(2) because it was denied as untimely by the state appellate court. A petitioner is not entitled to statutory tolling for any petition denied by the state courts as untimely because such a petition is considered "neither 'properly filed' nor 'pending'" in the state 4

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courts within the meaning of § 2244(d)(2). Thorson v. Palmer, 479 F.3d 643, 645 (9th Cir. 2007) (citing Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005) (citing Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005)). The Supreme Court has made clear that "[w]hen a postconviction petition is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2)." Pace, 544 U.S. at 414. Respondent suggests that because the state appellate court denied Petitioner's habeas petition citing In re Clark, 5 Cal. 4th 750, 782-99 (1993), and In re Robbins, 18 Cal. 4th 770, 780 (1998), it signaled that the petition was untimely. (Resp't Ex. D.) Accordingly, Respondent argues that under Pace, the appellate court petition did not extend the period of statutory tolling through September 12, 2007, when the state supreme court denied the petition, and thus Petitioner's federal petition is untimely. The Court agrees that if Petitioner's state habeas petition was denied as untimely under state law, his federal petition would be untimely under 28 U.S.C. § 2244(d). The issue here is whether the state appellate court clearly rejected the petition as untimely when it cited In re Clark and In re Robbins in its summary order of denial. In Thorson, the California Supreme Court summarily denied Thorson's habeas petition with a citation to In re Robbins, 18 Cal. 4th at 780. The Ninth Circuit held that the Supreme Court of California had "clearly rejected Thorson's habeas petition as untimely" by citing In re Robbins, because the court's summary order cited the very page of In re Robbins that sets forth 'the basic analytical framework' governing California's timeliness determinations in habeas corpus proceedings." Thorson, 479 F.3d at 645. In Bonner, the California superior court explained that it was denying Bonner's petition because, among other reasons, Bonner had either made the same claims in his earlier petition or could have done so, and that there was no reason stated for any delay in this regard. The Ninth Circuit held that "it is clear that the [state superior] court was denying Bonner's petition as untimely." Bonner, 425 F.3d at 1148. It noted that the superior court's language tracked California's requirement that, to avoid the state's timeliness bar, a petitioner must establish good cause for his 5

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delay, and that the record showed that Bonner had waited over four years to file his second petition. Id. If California courts have deemed periods of three years substantial, Bonner had to establish good cause for his four-year delay. Id. "When the court noted that Bonner had asserted no reason for his delay, then, the court was explaining that he had not met his burden of establishing good cause." Id. In In re Clark, the California Supreme Court held that "the general rule is still that, absent justification for the failure to present all known claims in a single, timely petition for writ of habeas corpus, successive and/or untimely petitions will be summarily denied." 5 Cal. 4th at 797. The lengthy opinion primarily discusses the standards for applying, as well as the exceptions to, the procedural bars against successive and/or untimely petitions. The opinion also discusses other limitations on collateral attack in the California courts. See id. at 763-67. Like in Thorson and Bonner, it is clear in the instant case that the state appellate court rejected Petitioner's habeas petition as untimely when it issued its summary order with citations to In re Clark and In re Robbins. The appellate court cited to the specific pages in the In re Clark and In re Robbins opinions indicating that the denial was based on untimeliness grounds. Under the circumstances, the state appellate court "'clearly ruled'" that Petitioner's habeas petition was "untimely." Pace, 544 U.S. at 414 (quoting Carey v. Saffold, 536 U.S. 214, 226 (2002)). Thus, the rationale of Pace extends to this case. See Thorson, 479 F.3d at 645 (applying rationale of Pace where denial of state petition was clear denial on timeliness grounds); Bonner, 425 F.3d at 1148-49 (same). Accordingly, Petitioner's habeas petition filed in the state appellate court was not "properly filed," thus, he not entitled to statutory tolling for his entire round of state collateral review. There is no dispute that Petitioner is entitled to statutory tolling from the time he filed his habeas petition in the superior court on November 13, 2006 until the court's denial of the petition on December 21, 2006. As mentioned above, no further statutory tolling occurred after the superior court denied his habeas petition until the date his appellate court petition was denied because that petition was "neither 'properly filed' nor 'pending'" in the state appellate court within the meaning of § 6

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2244(d)(2). See Pace, 544 U.S. at 417. Thus, the limitations period ran unabated from December 22, 2006, the day after his superior court petition was denied, and it expired fifty-eight days2 later on February 18, 2007. Petitioner's supreme court habeas petition was filed about two months later -- on April 26, 2007. Because his supreme court habeas petition was filed after the one-year statute of limitations had expired, the time it was pending in the state supreme court cannot serve to toll the statute. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) ("[S]ection 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed," even if the state petition was timely filed.); see also Rashid v. Kuhlmann, 991 F. Supp. 254, 259 (S.D.N.Y. 1998) ("Once the limitations period is expired, collateral petitions can no longer serve to avoid a statute of limitations"). Therefore, the instant federal habeas petition filed on October 11, 2007 is untimely by almost eight months unless equitable tolling applies. II. Equitable Tolling The one-year limitations period can be equitably tolled because § 2244(d) is a statute of limitations and not a jurisdictional bar. Beeler, 128 F.3d at 1288. "When external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). Equitable tolling will not be available in most cases because extensions of time should be granted only if "extraordinary circumstances beyond [a] prisoner's control make it impossible to file a petition on time." Beeler, 128 F.3d at 1288 (citation and internal quotation marks omitted). The prisoner must show that "the 'extraordinary circumstances' were the cause of his untimeliness." Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (citations omitted). The Ninth Circuit has said that the petitioner "bears the burden of showing that this extraordinary exclusion should apply to

As mentioned above, Petitioner had allowed 307 days to run prior to filing his superior court petition; therefore, he only had fifty-eight days (365 days - 307 days) of the limitations period remaining.
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him." Miranda, 292 F.3d at 1065. Whether equitable tolling is in order turns on an examination of detailed facts. Lott v. Mueller, 304 F.3d 918, 923 (9th Cir. 2002). In Laws v. Lamarque, the Ninth Circuit reversed the district court's order granting a motion to dismiss because it failed to develop the record in response to Law's claim of mental incompetency. 351 F.3d 919, 924 (9th Cir. 2003). The Ninth Circuit found that the allegations of the verified state petition attached to Law's traverse, stating that he was "deprived [] of any kind of cons[ci]ousness" during the period when his petitions should have been filed, may be treated as an affidavit in opposition to the motion to dismiss. Id. (citing McElyea v. Babbitt, 833 F.2d 196, 197-98 (9th Cir. 1987)). The Ninth Circuit determined that a district court should not require the petitioner to "carry a burden of persuasion" at the time he asserts equitable tolling to merit further investigation into the merits of his arguments for tolling. Id. at 924. Instead, Ninth Circuit cases require only that there be "circumstances consistent with [the] petitioner's petition . . . under which he would be entitled to . . . equitable tolling" to trigger further factual development of the record. Id. (citing Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc) (remanding case to district court for development of facts concerning whether AEDPA materials were unavailable in the prison law library and the legal significance of such a finding)). The Ninth Circuit found that the district court erred in granting judgment against Laws based upon the papers before it and that "[i]t [was] enough that Laws 'alleged mental competency' in a verified pleading." Laws, 351 F.3d at 924 (citations omitted). Therefore, the Ninth Circuit held that Laws was entitled to further factual development or an evidentiary hearing on the issue of whether he was precluded from filing his petition by reason of mental impairment. Id. In the present case, Petitioner has listed several reasons that he alleges contributed to his delay in filing his federal petition. First, Petitioner argues that he did not receive his legal files from his appellate counsel until February 25, 2006. He claims that "equitable tolling should accrue from January 10, 2006 through February 25, 2006 because a deprivation of his legal materials for 46 days . . . [was] an 'impediment beyond the prisoner's control.'" (Opp'n at 3.) 8

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A habeas petitioner cannot be expected to "'prepare and file a meaningful petition on his own within the limitations period' without access to his legal file." Espinoza-Matthews v. California, 432 F.3d 1021, 1027-28 (9th Cir. 2005) (quoting Spitsyn, 345 F.3d at 801). Therefore, Petitioner's lack of access to his legal files could constitute an extraordinary circumstance sufficient to warrant equitable tolling. See id. (equitable tolling warranted during inmate's eleven-month stay in administrative segregation because he was denied access to legal papers despite his repeated requests for them); see also Lott v. Mueller, 304 F.3d 918, 921-24 (9th Cir. 2002) (granting habeas petitioner equitable tolling for eighty-two days he was deprived of his legal materials due to two temporary transfers, despite the fact that petitioner received materials shortly before the limitation period was to expire). Petitioner alleges that the forty-six days that he was without access to his legal files (after the limitation period started to run against him on January 10, 2006) made it impossible for him to file a federal petition on time. In the reply, Respondent states: [P]etitioner fails to demonstrate any basis for equitable tolling, inasmuch as appellate counsel provided [P]etitioner's legal file after only 46 days, with over ten months remaining in the statute of limitations period. It is absurd for [P]etitioner to now claim that appellate counsel's conduct amounted to an extraordinary circumstance that made it impossible for him to file his petition. (Reply at 2.) Respondent's statements are conclusory, and he does not take into consideration Petitioner's arguments below that he is entitled to equitable tolling during nine of the remaining ten months (from February 25, 2006 through November 13, 2006) based on limited access to the law library. Thus, the Court finds that Respondent has not sufficiently addressed whether Petitioner is entitled to equitable tolling based on a lack of access to his legal materials. Petitioner next claims that he is entitled to equitable tolling "during the period of February 25, 2006 through November 13, 2006, the filing date of the state-habeas petition seeking collateral relief, due to the myriad lockdowns and limited access to the law-library at CSP-Calipatria . . . ." (Opp'n at 3.) Initially, Petitioner had filed a motion for the Court to issue an Order "Re: Production of Documentary Evidence of Lockdowns at C.S.P. - Calipatria," claiming that he was unable to make his equitable tolling argument without documents relating to lockdowns at California State Prison - Calipatria between October 1, 2005 through December 12, 2006. (Pet'r Oct. 28, 2008 Mot. 9

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at 1.) He claimed that he had been unsuccessful in obtaining these documents from the prison's "legal coordinator." (Id.) In an Order dated May 19, 2009, the Court granted Petitioner an extension of time to file his opposition stating, "[b]ecause 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." (May 19, 2009 Order at 2.) The Court directed counsel for Respondent to "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." (Id. at 3.) On August 7, 2009, Respondent filed a "Response to Court Order to Provide Petitioner with Copies of Prison Records" and provided the Court with competent evidence in the form of the Program Status Reports for this time period. Contrary to Petitioner's claims, this evidence demonstrates that the prison was never on "lockdown" or on a "state of emergency" status during the relevant time period. (Resp't Attach. 14.) The Program Status Reports classify the prison as having been on a "modified program" beginning on August 18, 2005 due to an attempted murder on a peace officer. (Id.) Pursuant to this modified program, the inmates' access to the law library was classified as "NORMAL 12 inmates (2 C/Os)" in most of the Program Status Reports. (Id.) Some Program Status Reports classified the inmates' access to the law library as "APPROVED COURT DEADLINES." (Id.) Toward the end of the relevant time period from July 26, 2006 though October 27, 2006, the Program Status Reports classified the inmates' access to the law library as "NORMAL 15 inmates and 3 clerks." (Id.) In light of these Program Status Reports, Petitioner now concedes that twelve inmates at a time were permitted to use the prison law library during the time period at issue; however, he "avers he signed-up on the logsheet requesting access to the library each time it was available for his yard, to no avail." (Opp'n at 3.) Even after viewing the Program Status Reports showing that no lockdowns occurred, Petitioner, in his opposition, asserts equitable tolling should accrue "during the period of February 25, 2006 through November 13, 2006, the filing date of the state-habeas petition seeking collateral relief, due to the myriad lockdowns and limited access to the law-library at CSPCalipatria, i.e., the 12 inmates permitted access to the law-library are picked from a pool of over 500 10

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prisoners." (Id.) Petitioner's failure to provide a factual basis for his conclusory statement that there were "lockdowns" during this time period leaves Respondent's evidence -- showing no lockdowns occurred during this time period -- unrefuted. Therefore, the Court only focuses on Petitioner's claim that his access to the law library was limited from February 25, 2006 through November 13, 2006. The existence of an adequate law library does not provide for meaningful access to the courts if the prisoners are not allowed a reasonable amount of time to use the library. See Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 858 (9th Cir. 1985). However, the Constitution does not guarantee a prisoner unlimited access to the law library. Prison officials of necessity must regulate the time, manner and place in which library facilities are used. Id. The fact that a prisoner must wait for a turn to use the library does not necessarily mean that he has been denied meaningful access to the courts. Id. Moreover, prisoners on lockdown or in the Security Housing Unit may face delays in accessing the law library, but so long as the delays are the product of prison regulations reasonably related to legitimate penological interests, such delays are not of constitutional significance, even where they result in actual injury. Lewis v. Casey, 518 U.S. 343, 361-62 (1996). In the instant case, it is conceivable that equitable tolling might be warranted because Petitioner was prevented from preparing a timely petition due to his limited access to the law library. Again, Respondent did not fully address this issue in his reply to Petitioner's opposition. Respondent merely states, "There is no documentary evidence of any kind that supports [P]etitioner's claim that he regularly signed up to use the prison law library, but was somehow never allowed to use it." (Reply at 3.) Such an argument is conclusory, and Respondent fails to address Petitioner's claim that his limited access to the law library prevented him from filing a timely petition. In support of his claim, Petitioner alleges that "[t]he library was rotated between yards every other day, so by submitting a sign-up request for library access did not guarantee [him] a spot in the library . . . [i]n fact it could take up to 6 weeks to gain access for 2 hours." (Pet'r Resp. to Reply at 1.) As mentioned above, Respondent has submitted evidence countering Petitioner's claim

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of lockdowns during the relevant time period; however, Respondent has failed to refute Petitioner's allegations that law library access was limited during that time. In sum, the Court finds that Respondent has not addressed whether Petitioner is entitled to equitable tolling based on his lack of access to his legal materials and his limited access to the law library. Accordingly, the Court DENIES Respondent's motion to dismiss without prejudice to renewing the motion and addressing the aforementioned equitable tolling issues raised in Petitioner's opposition. CONCLUSION For the foregoing reasons, 1. Respondent's motion to dismiss the petition as untimely (docket no. 6) is DENIED

without prejudice to renewing the motion and addressing the equitable tolling issues set forth above no later that sixty (60) days of the date of this Order. If Respondent chooses to file a renewed motion, Petitioner shall file an opposition, no later than thirty (30) days of his receipt of the renewed motion, and Respondent shall file with the Court and serve on Petitioner a reply no later than fifteen (15) days of receipt of any opposition. 2. Should Respondent fail to file a renewed motion to dismiss within the sixty-day time

frame, Respondent is directed to SHOW CAUSE why the petition should not be granted. Respondent shall file with this Court and serve upon Petitioner, no later than sixty (60) days of the date of this Order, 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 issued. Respondent shall file with the Answer 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. 3. If Petitioner wishes to respond to the Answer, he shall do so by filing a Traverse with

the Court and serving it on Respondent no later than forty-five (45) days of his receipt of the Answer. Should Petitioner fail to do so, the petition will be deemed submitted and ready for decision forty-five (45) days after the date Petitioner is served with Respondent's Answer.

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4.

It is Petitioner's responsibility to prosecute this case. Petitioner must keep the court

informed of any change of address by filing a separate paper with the Clerk of the Court headed "NOTICE OF CHANGE OF ADDRESS," and comply with any orders of the Court within the time allowed or ask for an extension of that time. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). 5. Petitioner is reminded that all communications with the Court, whether by way of

formal legal motions or informal letters, must be served on Respondent by mailing a true copy of the document to Respondent's counsel. 6. Extensions of time are not favored, though reasonable extensions will be granted.

However, the party making a motion for an extension of time is not relieved from his or her duty to comply with the deadlines set by the Court merely by having made a motion for an extension of time. The party making the motion must still meet the deadlines set by the Court until an order addressing the motion for an extension of time is issued. Any motion for an extension of time must be filed no later than fifteen (15) days prior to the deadline sought to be extended. 7. This Order terminates Docket no. 6.

IT IS SO ORDERED. DATED: September 30, 2009 SAUNDRA BROWN ARMSTRONG United States District Judge

P:\PRO-SE\SBA\HC.07\Sunday5308.denyMTD(sol).frm 13

1 2 3 4 5 6 7 8 9 10 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 P:\PRO-SE\SBA\HC.07\Sunday5308.denyMTD(sol).frm 14 Roman Sunday California State Prison - Solano V-11338 P.O. Box 4000 Vacaville, CA 95696-4000 Dated: October 15, 2009 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk 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 October 15, 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.