Dixon v. Brown
Filing
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ORDER re 43 MOTION to Dismiss Amended Petition as Untimely and for Failure to Exhaust State Remedies filed by Edmund G. Brown, Jr.. Signed by Judge ARMSTRONG on 1/30/13. (lrc, COURT STAFF) (Filed on 1/31/2013)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ALFRED E. DIXON,
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Petitioner,
ORDER GRANTING PETITIONER
ADDITIONAL TIME TO FILE
OPPOSITION TO MOTION TO
DISMISS
v.
EDMUND G. BROWN, JR., Warden,
Respondent.
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No. C 08-03832 SBA (PR)
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Petitioner Alfred E. Dixon, a state prisoner proceeding pro se, filed a petition for a
United States District Court
For the Northern District of California
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writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutional validity of
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his state conviction. On April 22, 2009, the Court ordered Respondent to show cause why
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the petition should not be granted. On August 21, 2009, Respondent moved to dismiss the
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petition as a mixed petition containing both exhausted and unexhausted claims. Petitioner
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opposed the motion.
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In an Order dated March 16, 2010, the Court granted the motion to dismiss and
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ordered Petitioner to make an election regarding how he wanted to proceed with regard to his
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unexhausted claims. Thereafter, on April 7, 2010, Petitioner filed a letter requesting a stay of
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the proceedings while he completed the process of exhausting his unexhausted claims. On
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May 5, 2010, the Court issued an order staying the petition and administratively closing the
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case. (Dkt. 20).
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On February 17, 2011, Petitioner filed a status report indicating that he had exhausted
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all claims in state court. (Dkt. 34). On March 1, 2011, the Court ordered that Petitioner file
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an amended petition within thirty days of the filing date of the order. (Dkt. 35). Petitioner
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timely filed his amended petition on March 11, 2011. (Dkt. 37). On March 16, 2011, the
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Court lifted the stay and issued an Order for Respondent to show cause why the amended
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petition should not be granted. (Dkt. 39).
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On May 9, 2011, Respondent filed a motion to dismiss the amended petition as
untimely and for failure to exhaust state remedies. (Dkt. 43). Petitioner has not filed an
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opposition. However, on May 4, 2011, Petitioner filed a letter indicating that he had been
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moved. (Dkt. 42). Petitioner indicates his address is now:
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F-11362 Housing B-14-132 Low
Donovan State Prison, PO Box 799002
San Diego, CA 92179-9002
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On September 21, 2011, Petitioner filed a letter requesting his case status, indicating
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that he had not received Respondent’s motion to dismiss. The certificate of service attached
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to Respondent’s motion indicates that it did not include the designation “B-14-132 Low” in
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Petitioner’s new address. As such, it is possible that the motion was not delivered to
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Petitioner. Therefore, the Court will allow Petitioner thirty days from the date this order is
United States District Court
For the Northern District of California
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filed in which to file an opposition to Respondent’s motion to dismiss. The Clerk of the
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Court shall ensure that Petitioner’s correct address is on the docket. The Clerk of the Court
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shall send to Petitioner a copy of Respondent’s motion to dismiss together with this Order.
CONCLUSION
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For the foregoing reasons,
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IT IS HEREBY ORDERED THAT:
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1. Petitioner is granted thirty (30) days from the date of this Order is filed to file his
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opposition to Respondent’s motion to dismiss. If Petitioner does not file an opposition
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within this time frame, Respondent’s motion will be deemed unopposed and any facts or
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evidence submitted by Respondent will be undisputed and, therefore, may be taken to be
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true.
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2. The Clerk of the Court shall input Petitioner’s correct address on the docket.
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3. The Clerk of the Court shall sent to Petitioner a copy of Respondent’s motion to
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dismiss along with a copy of this Order.
IT IS SO ORDERED.
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DATED:
1/30/13
SAUNDRA BROWN ARMSTRONG
United States District Judge
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G:\PRO-SE\SBA\HC.08\Dixon3832.EOT Opp.wpd
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UNITED STATES DISTRICT COURT
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FOR THE
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NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California
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Case Number: CV08-03832 SBA
ALFRED E DIXON,
CERTIFICATE OF SERVICE
Plaintiff,
v.
EDMUND G BROWN JR et al,
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.
That on January 31, 2013, 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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Alfred E. Dixon F-11362
Donovan State Prison
P.O. Box 799002
San Diego, CA 92179-9002
Dated: January 31, 2013
Richard W. Wieking, Clerk
By: Lisa Clark, Deputy Clerk
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