Martinez Torres v. Evans

Filing 5

ORDER requireing response. Respondent shall file a motion to dismiss on or before 10/20/06. If the respondent files a motion to dismiss, petitioner shall file his opposition no later than 11/14/06. Repsondent shall file an no later than 11/6/06. Petitioner may file a traverse no later than 12/6/06.Signed by Judge Cathy Ann Bencivengo on 9/6/06. (r1r)

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Martinez Torres v. Evans Doc. 5 Case 3:06-cv-01705-H-PCL Document 5 Filed 09/06/2006 Page 1 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P etitio n er, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas C o r p u s pursuant to 28 U.S.C. 2254. In accordance with Rule 4 of the rules governing petitions f o r a writ of habeas corpus pursuant to 28 U.S.C. 2254, and upon a preliminary review of the Pet ition , IT IS ORDERED that: 1 . The Clerk of this Court shall promptly (a) serve a copy of the Petition and a copy of t his Order on the Attorney General for the State of California, or his authorized agent; and (b) serve a copy of this Order on Petitioner. 2 . If Respondent contends the Petition can be decided without the Court's reaching the merits of Petitioner's claims (e.g., because Respondent contends Petitioner has failed to exhaust a n y state remedies as to any ground for relief alleged in the Petition, or that the Petition is barred b y the statute of limitations, or that the Petition is subject to dismissal under Rule 9 of the Rules G o v e r n i n g 2254 Cases, or that all of the claims are procedurally defaulted, or that Petitioner -1v. MIKE EVANS, Warden, Respondent. JAVIER MARTINEZ TORRES, Petitioner, ORDER REQUIRING RESPONSE TO PETITION (28 U.S.C. 2254) Civil No. 06-1705 H (CAB) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA K : \C O M M O N \ C H M B _ B e n c i ve n g o\ C a se s \C i v il \T o r r es -- 0 6 cv 1 7 0 5 \o r d er r eq u i ri n g r e sp o n se .w p d , 9 6 6 06cv1705 Dockets.Justia.com Case 3:06-cv-01705-H-PCL Document 5 Filed 09/06/2006 Page 2 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 is not in custody), Respondent shall file a motion to dismiss pursuant to Rule 4 of the Rules G o v e r n i n g 2254 Cases no later than October 20, 2006. The motion to dismiss shall not a d d r e s s the merits of Petitioner's claims, but rather shall address all grounds upon which R e s p o n d e n t contends dismissal without reaching the merits of Petitioner's claims is warranted.1 A t the time the motion to dismiss is filed, Respondent shall lodge with the Court all records b e a r i n g on Respondent's contention in this regard. A hearing date is not required for the motion t o dismiss. 3 . If Respondent files a motion to dismiss, Petitioner shall file his opposition, if any, to t h e motion no later than November 14, 2006. At the time the opposition is filed, Petitioner shall l o d g e with the Court any records not lodged by Respondent which Petitioner believes may be r e l e v an t to the Court's determination of the motion. 4 . Unless the Court orders otherwise, Respondent shall not file a reply to Petitioner's o p p o s i ti o n to a motion to dismiss. If the motion is denied, the Court will afford Respondent a d e q u a t e time to respond to Petitioner's claims on the merits. 5 . If Respondent does not contend that the Petition can be decided without the Court r e a c h in g the merits of Petitioner's claims, Respondent shall file and serve an answer to the P e t i ti o n , and a memorandum of points and authorities in support of such answer, pursuant to Ru le 5 of the Rules Governing 2254 Cases no later than November 6, 2006. At the time the a n s w e r is filed, Respondent shall lodge with the Court all records bearing on the merits of Petitio n er's claims. The lodgments shall be accompanied by a notice of lodgment which shall b e captioned "Notice of Lodgment in 28 U.S.C. 2254 Habeas Corpus Case -- To Be Sent to Clerk's Office." Respondent shall not combine separate pleadings, orders or other items into a combined lodgment entry. Each item shall be numbered separately and sequentially. 6 . Petitioner may file a traverse to matters raised in the answer no later than December 6 , 2006. Any traverse by Petitioner (a) shall state whether Petitioner admits or denies each a l l eg a t i o n of fact contained in the answer; (b) shall be limited to facts or arguments responsive If Resp o n d e n t contends Petitioner has failed to exhaust any state remedies as to any ground for relief alleged in t h e Petition, the motion to dismiss shall also specify the state remedies still available to Petitioner. K : \C O M M O N \ C H M B _ B e n c i ve n g o\ C a se s \C i v il \T o r r es -- 0 6 cv 1 7 0 5 \o r d er r eq u i ri n g r e sp o n se .w p d , 9 6 6 1 -2- 06cv1705 Case 3:06-cv-01705-H-PCL Document 5 Filed 09/06/2006 Page 3 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 to matters raised in the answer; and (c) shall not raise new grounds for relief that were not a s s e r te d in the Petition. Grounds for relief withheld until the traverse will not be considered. N o traverse shall exceed ten (10) pages in length absent advance leave of Court for good cause shown. 7 . A request by a party for an extension of time within which to file any of the pleadings r e q u i re d by this Order should be made in advance of the due date of the pleading, and the Court will grant such a request only upon a showing of good cause. Any such request shall be a c c o m p a n i e d by a declaration under penalty of perjury explaining why an extension of time is ne ce ss ar y. 8 . Unless otherwise ordered by the Court, this case shall be deemed submitted on the day f o l l o w i n g the date Petitioner's opposition to a motion to dismiss and/or his traverse is due. 9 . Every document delivered to the Court must include a certificate of service attesting t h a t a copy of such document was served on opposing counsel (or on the opposing party, if such party is not represented by counsel). Any document delivered to the Court without a certificate of service will be returned to the submitting party and will be disregarded by the Court. 1 0 . Petitioner shall immediately notify the Court and counsel for Respondent of any c h a n g e of Petitioner's address. If Petitioner fails to keep the Court informed of where Petitioner m a y be contacted, this action will be subject to dismissal for failure to prosecute. I T IS SO ORDERED. DA TE D: September 6, 2006 H O N . CATHY ANN BENCIVENGO U n i t e d States Magistrate Judge C o p i e s to: A L L PARTIES 28 -3- K : \C O M M O N \ C H M B _ B e n c i ve n g o\ C a se s \C i v il \T o r r es -- 0 6 cv 1 7 0 5 \o r d er r eq u i ri n g r e sp o n se .w p d , 9 6 6 06cv1705 Case 3:06-cv-01705-H-PCL Document 5 Filed 09/06/2006 Page 4 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- K : \C O M M O N \ C H M B _ B e n c i ve n g o\ C a se s \C i v il \T o r r es -- 0 6 cv 1 7 0 5 \o r d er r eq u i ri n g r e sp o n se .w p d , 9 6 6 06cv1705

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