Dixon v. Brown

Filing 45

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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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 ALFRED E. DIXON, 4 5 6 7 Petitioner, ORDER GRANTING PETITIONER ADDITIONAL TIME TO FILE OPPOSITION TO MOTION TO DISMISS v. EDMUND G. BROWN, JR., Warden, Respondent. 8 9 No. C 08-03832 SBA (PR) / 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 10 writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutional validity of 11 his state conviction. On April 22, 2009, the Court ordered Respondent to show cause why 12 the petition should not be granted. On August 21, 2009, Respondent moved to dismiss the 13 petition as a mixed petition containing both exhausted and unexhausted claims. Petitioner 14 opposed the motion. 15 In an Order dated March 16, 2010, the Court granted the motion to dismiss and 16 ordered Petitioner to make an election regarding how he wanted to proceed with regard to his 17 unexhausted claims. Thereafter, on April 7, 2010, Petitioner filed a letter requesting a stay of 18 the proceedings while he completed the process of exhausting his unexhausted claims. On 19 May 5, 2010, the Court issued an order staying the petition and administratively closing the 20 case. (Dkt. 20). 21 On February 17, 2011, Petitioner filed a status report indicating that he had exhausted 22 all claims in state court. (Dkt. 34). On March 1, 2011, the Court ordered that Petitioner file 23 an amended petition within thirty days of the filing date of the order. (Dkt. 35). Petitioner 24 timely filed his amended petition on March 11, 2011. (Dkt. 37). On March 16, 2011, the 25 Court lifted the stay and issued an Order for Respondent to show cause why the amended 26 petition should not be granted. (Dkt. 39). 27 28 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 1 opposition. However, on May 4, 2011, Petitioner filed a letter indicating that he had been 2 moved. (Dkt. 42). Petitioner indicates his address is now: 4 F-11362 Housing B-14-132 Low Donovan State Prison, PO Box 799002 San Diego, CA 92179-9002 5 On September 21, 2011, Petitioner filed a letter requesting his case status, indicating 3 6 that he had not received Respondent’s motion to dismiss. The certificate of service attached 7 to Respondent’s motion indicates that it did not include the designation “B-14-132 Low” in 8 Petitioner’s new address. As such, it is possible that the motion was not delivered to 9 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 10 filed in which to file an opposition to Respondent’s motion to dismiss. The Clerk of the 11 Court shall ensure that Petitioner’s correct address is on the docket. The Clerk of the Court 12 shall send to Petitioner a copy of Respondent’s motion to dismiss together with this Order. CONCLUSION 13 14 For the foregoing reasons, 15 IT IS HEREBY ORDERED THAT: 16 1. Petitioner is granted thirty (30) days from the date of this Order is filed to file his 17 opposition to Respondent’s motion to dismiss. If Petitioner does not file an opposition 18 within this time frame, Respondent’s motion will be deemed unopposed and any facts or 19 evidence submitted by Respondent will be undisputed and, therefore, may be taken to be 20 true. 21 2. The Clerk of the Court shall input Petitioner’s correct address on the docket. 22 3. The Clerk of the Court shall sent to Petitioner a copy of Respondent’s motion to 23 dismiss along with a copy of this Order. IT IS SO ORDERED. 24 25 DATED: 1/30/13 SAUNDRA BROWN ARMSTRONG United States District Judge 26 27 28 2 1 G:\PRO-SE\SBA\HC.08\Dixon3832.EOT Opp.wpd 2 UNITED STATES DISTRICT COURT 3 FOR THE 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 8 9 United States District Court For the Northern District of California 10 11 Case Number: CV08-03832 SBA ALFRED E DIXON, CERTIFICATE OF SERVICE Plaintiff, v. EDMUND G BROWN JR et al, Defendant. / 12 13 14 15 16 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. 17 18 19 20 21 22 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 23 24 25 26 27 28 3

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