Stewart v. Warden-Salinas Valley State Prison

Filing 8

ORDER DIRECTING RESPONDENT TO SHOW CAUSE WHY THE PETITION SHOULD NOT BE GRANTED: Habeas Answer or Dispositive Motion due by 10/16/2017. Signed by Magistrate Judge Donna M. Ryu on 8/17/17. (ig, COURT STAFF) (Filed on 8/16/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FREDERICK STEWART,

Case No. 17-cv-01406-DMR (PR)

Petitioner,
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v.
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WILLIAM MUNIZ, Warden,1

ORDER DIRECTING RESPONDENT
TO SHOW CAUSE WHY THE
PETITION SHOULD NOT BE
GRANTED

United States District Court
Northern District of California

Respondent.
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Petitioner, a state prisoner, has filed this petition for a writ of habeas corpus pursuant to 28

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U.S.C. § 2254. Petitioner has paid the full filing fee. This action has been assigned to the

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undersigned Magistrate Judge.
Pursuant to 28 U.S.C. § 636(c), with written consent of all parties, a magistrate judge may

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conduct all proceedings in a case, including entry of judgment. Appeal will be directly to the

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United States Court of Appeals for the Ninth Circuit. See 28 U.S.C. § 636(c)(3).
On March 15, 2017, Petitioner consented to magistrate judge jurisdiction in this matter.

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Dkt. 4.
It does not appear from the face of the petition that it is without merit. Good cause
appearing, the court hereby issues the following orders:
1.

The Clerk of the Court shall serve a Magistrate Judge jurisdiction consent form, a

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copy of this Order, as well as the petition and all attachments thereto upon Respondent and

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Respondent’s attorney, the Attorney General of the State of California. The Clerk shall also serve

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a copy of this Order on Petitioner at Petitioner’s current address.

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William Muniz, the current warden of the prison where Petitioner is incarcerated, has
been substituted as Respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.

2.

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Within twenty-eight (28) days of the issuance of this Order, Respondent shall

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complete and file the Magistrate Judge jurisdiction consent form to indicate whether Respondent

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consents or declines to proceed before the assigned Magistrate Judge. Respondent is free to

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withhold consent without adverse consequences. If Respondent consents to a Magistrate Judge’s

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jurisdiction, this case will be handled by the undersigned Magistrate Judge. If Respondent

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declines, the case will be reassigned to a District Judge. Whether Respondent consents or declines

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to proceed before the assigned Magistrate Judge, the parties shall abide by the briefing schedule

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below.

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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

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United States District Court
Northern District of California

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Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued.

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Respondent shall file with the Answer a copy of all portions of the relevant state records that have

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been transcribed previously and that are relevant to a determination of the issues presented by the

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petition.

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4.

If Petitioner wishes to respond to the Answer, Petitioner shall do so by filing a

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Traverse with the court and serving it on Respondent within twenty-eight (28) days of

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Petitioner’s receipt of the Answer. Should Petitioner fail to do so, the petition will be deemed

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submitted and ready for decision twenty-eight (28) days after the date Petitioner is served with

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Respondent’s Answer.

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5.

Respondent may file with this court and serve upon Petitioner, within sixty (60)

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days of the issuance of this Order, a motion to dismiss on procedural grounds in lieu of an

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Answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section

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2254 Cases. If Respondent files a motion to dismiss, Petitioner shall file with the court and serve

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on Respondent an opposition or statement of non-opposition to the motion within twenty-eight

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(28) days of receipt of the motion, and Respondent shall file with the court and serve on Petitioner

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a reply within fourteen (14) days of receipt of any opposition.

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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
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in a timely fash
hion. Pursua to Northe District L
ant
ern
Local Rule 3
3-11 a party proceeding p se
pro

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wh
hose address changes wh an action is pending must promp file a not of chang of
hile
n
ptly
tice
ge

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add
dress specify
ying the new address. Se L.R. 3-11 (a). The cou may dism a pro se action
w
ee
urt
miss
e

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wit
thout prejudi when: (1 mail direct to the pr se party by the court h been retu
ice
1)
ted
ro
y
has
urned to the

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cou as not del
urt
liverable, an (2) the cou fails to re
nd
urt
eceive within sixty days of this retur a written
n
rn

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com
mmunication from the pr se party indicating a c
n
ro
current addr
ress. See L.R 3-11(b); s also
R.
see

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Ma
artinez v. Joh
hnson, 104 F.3d 769, 772 (5th Cir. 1
F
1997) (Rule 4
41(b) applic
cable in habe cases).
eas

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Pet
titioner must also serve on Responde
t
o
ent’s counse all commu
el
unications wi the court by mailing
ith
t

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a tr copy of the documen to Respon
rue
t
nt
ndent’s couns
sel.

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United States District Court
Northern District of California

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7.

Upon a show
wing of good cause, requ
d
uests for a re
easonable ex
xtension of t
time will be

gra
anted provided they are filed on or before the dea
f
adline they s
seek to exten
nd.
IT IS SO ORDERE
ED.
Da
ated: August 17, 2017
t

________
___________
__________
____
DONNA M RYU
M.
United Sta Magistr Judge
ates
rate

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3

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UNITED STATES D
D
DISTRICT C
COURT

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NORTHER DISTRIC OF CALI
RN
CT
IFORNIA

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FR
REDERICK STEWART
K
T,

Case No. 4
4:17-cv-0140
06-DMR

Plaintiff,
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v.

CERTIFIC
CATE OF S
SERVICE

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WARDEN-SA
W
ALINAS VA
ALLEY STA
ATE
PR
RISON,

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Defendant.
.

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I, the un
ndersigned, hereby certify that I am an employe in the Offi of the Clerk, U.S.
ee
ice
strict Court, Northern Di
istrict of Cal
lifornia.
Dis

United States District Court
Northern District of California

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That on August 17, 2017, I SER
n
RVED a true and correct copy(ies) o the attache by
e
t
of
ed,
pla
acing said co
opy(ies) in a postage paid envelope a
d
addressed to the person(s hereinafte listed, by
s)
er
dep
positing said envelope in the U.S. Mail, or by pla
d
n
M
acing said co
opy(ies) into an inter-off delivery
o
ffice
y
rec
ceptacle loca in the Cl
ated
lerk's office.
.

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Fre
ederick Stew ID: AUO571
wart
P.O Box 1020
O.
0
Sol
ledad, CA 93960
Da
ated: August 17, 2017

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usan Y. Soon
ng
Su
Cl
lerk, United States Distr Court
d
rict

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By
y:_________
___________
_______
Iv Lerma Ga
vy
arcia, Deputy Clerk to th
y
he
H
Honorable DO
ONNA M. R
RYU

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