Tran v. Macomber

Filing 17

ORDER GRANTING 14 MOTION TO LIFT STAY AND REOPEN ACTION; ORDER TO SHOW CAUSE. Case reopened. Show Cause Response due by 5/19/2014. Signed by Judge Claudia Willken on 3/18/2014. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 3/18/2014)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 DUNG TRAN, 5 6 No. C 11-0877 CW (PR) Petitioner, ORDER GRANTING MOTION TO LIFT STAY AND REOPEN ACTION; ORDER TO SHOW CAUSE v. 7 JEFF MACOMBER, Warden, 8 Respondent.1 _______________________________/ 9 (Docket no. 14) 10 United States District Court For the Northern District of California This action was stayed and administratively closed so that 11 Petitioner, Dung Tran, could exhaust state court remedies as to 12 several of his claims for habeas relief. Petitioner has filed a "motion to lift stay and reopen action.” In the motion, he 13 14 reports that he has exhausted his state court remedies and is 15 ready to proceed with consideration of his amended petition which 16 has been filed at docket number 15. 17 Good cause appearing, the Court GRANTS Petitioner’s motion to 18 lift the stay and reopen the action. The stay is lifted. The 19 Clerk of the Court will reopen this action. Petitioner may 20 proceed with his amended petition, which is deemed to supersede 21 the original petition. 22 Petitioner has also filed a request for the Court to take 23 judicial notice of state court records pertaining to his 24 conviction. Good cause appearing, this motion is granted. 25 26 27 28 1 In accordance with Habeas Rule 2(a) and Rule 25(d)(1) of the Federal Rules of Civil Procedure, the Clerk of the Court is directed to substitute Warden Jeff Macomber as Respondent because he is Petitioner's current custodian. 1 The Court hereby issues the following orders: 2 1. The Clerk shall serve a copy of this Order and the 3 amended petition (docket no. 15) and all attachments thereto upon 4 Respondent and Respondent’s attorney, the Attorney General of the 5 State of California. 6 Order on Petitioner at his current address. 7 2. The Clerk also shall serve a copy of this No later than sixty days from the date of this Order, 8 Respondent shall file with this Court and serve upon Petitioner an 9 Answer conforming in all respects to Rule 5 of the Rules Governing United States District Court For the Northern District of California 10 Section 2254 Cases, showing cause why a writ of habeas corpus 11 should not be issued. 12 portions of the state record that have been transcribed previously 13 and are relevant to a determination of the issues presented by the 14 petition. 15 Respondent shall file with the Answer all If Petitioner wishes to respond to the Answer, he shall do so 16 by filing a Traverse with the Court and serving it on Respondent 17 no later than thirty days from his receipt of the Answer. 18 does not do so, the petition will be deemed submitted and ready 19 for decision on the date the Traverse is due. 20 3. If he No later than sixty days from the date of this Order, 21 Respondent may file with this Court and serve upon Petitioner a 22 motion to dismiss on procedural grounds in lieu of an Answer, as 23 set forth in the Advisory Committee Notes to Rule 4 of the Rules 24 Governing Section 2254 Cases. 25 If Respondent files such a motion, Petitioner shall file with 26 the Court and serve on Respondent an opposition or statement of 27 non-opposition to the motion within twenty-eight days of receipt 28 of the motion, and Respondent shall file with the Court and serve 2 1 on Petitioner a reply within fourteen days of receipt of an 2 opposition. 3 4. It is Petitioner’s responsibility to prosecute this 4 case. 5 address by filing a separate paper with the clerk headed “Notice 6 of Change of Address,” and must comply with the Court's orders in 7 a timely fashion. 8 communications with the Court by mailing a true copy of the 9 document to Respondent’s counsel. Petitioner must keep the Court informed of any change of He also must serve on Respondent’s counsel all Failure to do so may result in United States District Court For the Northern District of California 10 the dismissal of this action, pursuant to Federal Rule of Civil 11 Procedure 41(b), for failure to prosecute. 12 5. Extensions of time are not favored, though reasonable 13 extensions will be granted. 14 must be filed no later than ten days prior to the deadline sought 15 to be extended. 16 17 6. Any motion for an extension of time The Clerk of the Court shall substitute Jeff Macomber as Respondent. 18 7. 19 IT IS SO ORDERED. This Order terminates Docket no. 14. 20 21 22 Dated: 3/18/2014 CLAUDIA WILKEN United States District Judge 23 24 25 26 27 28 3

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