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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 FREDERICK STEWART, Case No. 17-cv-01406-DMR (PR) Petitioner, 9 v. 10 11 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. 12 Petitioner, a state prisoner, has filed this petition for a writ of habeas corpus pursuant to 28 13 14 U.S.C. § 2254. Petitioner has paid the full filing fee. This action has been assigned to the 15 undersigned Magistrate Judge. Pursuant to 28 U.S.C. § 636(c), with written consent of all parties, a magistrate judge may 16 17 conduct all proceedings in a case, including entry of judgment. Appeal will be directly to the 18 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. 19 20 21 22 23 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 24 copy of this Order, as well as the petition and all attachments thereto upon Respondent and 25 Respondent’s attorney, the Attorney General of the State of California. The Clerk shall also serve 26 a copy of this Order on Petitioner at Petitioner’s current address. 27 1 28 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. 1 Within twenty-eight (28) days of the issuance of this Order, Respondent shall 2 complete and file the Magistrate Judge jurisdiction consent form to indicate whether Respondent 3 consents or declines to proceed before the assigned Magistrate Judge. Respondent is free to 4 withhold consent without adverse consequences. If Respondent consents to a Magistrate Judge’s 5 jurisdiction, this case will be handled by the undersigned Magistrate Judge. If Respondent 6 declines, the case will be reassigned to a District Judge. Whether Respondent consents or declines 7 to proceed before the assigned Magistrate Judge, the parties shall abide by the briefing schedule 8 below. 9 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 11 United States District Court Northern District of California 10 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued. 12 Respondent shall file with the Answer a copy of all portions of the relevant state records that have 13 been transcribed previously and that are relevant to a determination of the issues presented by the 14 petition. 15 4. If Petitioner wishes to respond to the Answer, Petitioner shall do so by filing a 16 Traverse with the court and serving it on Respondent within twenty-eight (28) days of 17 Petitioner’s receipt of the Answer. Should Petitioner fail to do so, the petition will be deemed 18 submitted and ready for decision twenty-eight (28) days after the date Petitioner is served with 19 Respondent’s Answer. 20 5. Respondent may file with this court and serve upon Petitioner, within sixty (60) 21 days of the issuance of this Order, a motion to dismiss on procedural grounds in lieu of an 22 Answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 23 2254 Cases. If Respondent files a motion to dismiss, Petitioner shall file with the court and serve 24 on Respondent an opposition or statement of non-opposition to the motion within twenty-eight 25 (28) days of receipt of the motion, and Respondent shall file with the court and serve on Petitioner 26 a reply within fourteen (14) days of receipt of any opposition. 27 28 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 2 1 in a timely fash hion. Pursua to Northe District L ant ern Local Rule 3 3-11 a party proceeding p se pro 2 wh hose address changes wh an action is pending must promp file a not of chang of hile n ptly tice ge 3 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 4 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 5 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 6 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 7 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 8 Pet titioner must also serve on Responde t o ent’s counse all commu el unications wi the court by mailing ith t 9 a tr copy of the documen to Respon rue t nt ndent’s couns sel. 10 United States District Court Northern District of California 11 12 13 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 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 UNITED STATES D D DISTRICT C COURT 2 NORTHER DISTRIC OF CALI RN CT IFORNIA 3 4 FR REDERICK STEWART K T, Case No. 4 4:17-cv-0140 06-DMR Plaintiff, 5 v. CERTIFIC CATE OF S SERVICE 6 7 WARDEN-SA W ALINAS VA ALLEY STA ATE PR RISON, 8 Defendant. . 9 10 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 11 12 13 14 15 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. . 16 17 18 19 Fre ederick Stew ID: AUO571 wart P.O Box 1020 O. 0 Sol ledad, CA 93960 Da ated: August 17, 2017 20 21 22 usan Y. Soon ng Su Cl lerk, United States Distr Court d rict 23 24 25 26 By y:_________ ___________ _______ Iv Lerma Ga vy arcia, Deputy Clerk to th y he H Honorable DO ONNA M. R RYU 27 28 4

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