Phanbandith v. Knowles et al

Filing 6

ORDER Reopening Case and Setting Briefing Schedule: The Clerk of this Court shall serve a copy of the Petition and a copy of this Order on the Attorney General for the State of California. Motion to Dismiss due 5/14/07. Opposition to motion to dismis s due 6/4/07 or Respondents answer due 5/30/2007. Traverse due by 6/25/2007. Signed by Judge Cathy Ann Bencivengo on 3/28/2007. (Petition and Order sent to Attorney General)(mjj, ) Modified on 4/2/2007 to indicate that either a motion to dismiss or an answer shall be filed, not both.(mam).

Phanbandith v. Knowles et al

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Case 3:07-cv-00155-L-CAB

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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 v. MICHAEL KNOWLES, Warden, et al., Respondents. O n January 24, 2007, Petitioner, proceeding pro se, submitted a Petition for Writ of H a b e a s Corpus pursuant to 28 U.S.C. § 2254. In its January 30, 2007 Order, the Court dismissed this case without prejudice because Petitioner had failed to satisfy the filing fee requirement. On March 23, 2007, Petitioner paid the filing fee. The Court ORDERS that this case be r e o p e n e d . Further, in accordance with Rule 4 of the rules governing petitions for a writ of h a b e a s corpus pursuant to 28 U.S.C. § 2254, and upon a preliminary review of the Petition, IT I S ORDERED that: 1. T h e Clerk of this Court shall promptly (a) serve a copy of the Petition and a copy PHITIKHOUN PHANBANDITH, Petitioner, ORDER REOPENING CASE AND SETTING BRIEFING SCHEDULE Civil No. 07cv0155-L (CAB) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

o f this 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

t h e merits of Petitioner's claims (e.g., because Respondent contends Petitioner has failed to e x h a u s t any state remedies as to any ground for relief alleged in the Petition, or that the Petition

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is barred by the statute of limitations, or that the Petition is subject to dismissal under Rule 9 of t h e Rules Governing § 2254 Cases, or that all of the claims are procedurally defaulted, or that P e t i ti o n e r is not in custody), Respondent shall file a motion to dismiss pursuant to Rule 4 of the R u l e s Governing § 2254 Cases no later than May 14, 2007. 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 the motion no later than June 4, 2007. 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. U n l e s s 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 , as well as points and authorities in support of such answer, no later than May 30, 3007. A t the time the answer is filed, Respondent shall lodge with the Court all records bearing on the m e r i t s of Petitioner's claims. The lodgments shall be accompanied by a notice of lodgment w h i c h shall be captioned "Notice of Lodgment in 28 U.S.C. § 2254 Habeas Corpus Case -- T o Be Sent to Clerk's Office." Respondent shall not combine separate pleadings, orders or o t h e r items into a combined lodgment entry. Each item shall be numbered separately and se qu en tia lly.

If Respondent contends Petitioner has failed to exhau s t any state re m e d i e s as to any ground fo r relief alleged in t h e Petition, the motion to dismiss shall also specify the state remedies still available to Petitioner.

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6.

P e t i ti o n e r may file a traverse to matters raised in the answer no later than June 25,

2 0 0 7 . 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 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

p l e a d in g s required by this Order should be made in advance of the due date of the pleading, and t h e Court will grant such a request only upon a showing of good cause. Any such request shall b e accompanied by a declaration under penalty of perjury explaining why an extension of time is necessary. 8. U n l e s s otherwise ordered by the Court, this case shall be deemed submitted on the

d a y following the date Petitioner's opposition to a motion to dismiss and/or his traverse is due. 9. E v ery document delivered to the Court must include a certificate of service

a t t es t in g that a copy of such document was served on opposing counsel (or on the opposing pa rty, 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 disregarded by the Court. 10. P e t i ti o n e r 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.

D A T E D : March 28, 2007

C A T H Y ANN BENCIVENGO U n i t e d States Magistrate Judge

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