Garcia v. Adams

Filing 12

ORDER TO SHOW CAUSE. Signed by Judge ARMSTRONG on 11/16/10. (lrc, COURT STAFF) (Filed on 11/18/2010)

Garcia v. Adams

Doc. 12

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. J. ADAMS, Warden, ONESIMO GARCIA, Petitioner,

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

No. C 10-02050 SBA (PR) ORDER DIRECTING RESPONDENT TO SHOW CAUSE WHY THE AMENDED PETITION SHOULD NOT BE GRANTED; AND SETTING BRIEFING SCHEDULE /

Respondent.

On August 25, 2010, the Court issued an Order for Petitioner to Show Cause. The Order required Petitioner to file a notice in which he stated whether he elected to: (1) dismiss the petition with the goal of exhausting and then filing a new petition containing all claims; or (2) amend to delete the unexhausted claims and proceed with the exhausted one; or (3) ask for a stay to allow exhaustion. On November 4, 2010, Petitioner filed a document entitled "Show of Cause" along with an Amended Petition in which he elected to dismiss his unexhausted claims and proceed only with his exhausted claim (claim one). Accordingly, Petitioner's claims two and three are DISMISSED from this action. In light of the dismissal of the two unexhausted claims, the petition appears to contain only one exhausted claim which should be addressed on its merits. It does not appear from the face of the amended petition that it is without merit. Good cause appearing, the Court hereby issues the following orders: 1. 2. Petitioner's claims two and three are DISMISSED from this action. The Clerk of the Court shall serve a copy of this Order and the amended petition and

all attachments thereto (docket no. 11) upon Respondent and Respondent's attorney, the Attorney General of the State of California. The Clerk shall also serve a copy of this Order on Petitioner at his current address.

Dockets.Justia.com

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

3.

Respondent shall file with this Court and serve upon Petitioner, within sixty (60)

days of the issuance 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 relevant state records that have been transcribed previously and that are relevant to a determination of the issues presented by the petition. 4. If Petitioner wishes to respond to the Answer, he shall do so by filing a Traverse with

the Court and serving it on Respondent within sixty (60) days of his receipt of the Answer. Should Petitioner fail to do so, the petition will be deemed submitted and ready for decision sixty (60) days after the date Petitioner is served with Respondent's Answer. 5. Respondent may file with this Court and serve upon Petitioner, within sixty (60) days

of the issuance of this Order, a motion to dismiss on procedural grounds in lieu of an Answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If Respondent files such a motion, Petitioner shall file with the Court and serve on Respondent an opposition or statement of non-opposition to the motion within sixty (60) days of receipt of the motion, and Respondent shall file with the Court and serve on Petitioner a reply within fifteen (15) days of receipt of any opposition. 6. It is Petitioner's responsibility to prosecute this case. Petitioner must keep the Court

and Respondent informed of any change of address and must comply with the Court's orders in a timely fashion. Petitioner must also serve on Respondent's counsel all communications with the Court by mailing a true copy of the document to Respondent's counsel. 7. Extensions of time are not favored, though reasonable extensions will be granted.

Any motion for an extension of time must be filed no later than ten (10) days prior to the deadline sought to be extended. IT IS SO ORDERED. DATED: 11/16/10 SAUNDRA BROWN ARMSTRONG UNITED STATES DISTRICT JUDGE

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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

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ONESIMO GARCIA, Plaintiff, v. J ADAMS et al, Defendant. /

Case Number: CV10-02050 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 November 18, 2010, 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.

Onesimo Garcia F-86310 Pelican Bay State Prison PO Box 7500 Crescent City, CA 95532 Dated: November 18, 2010 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

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