Scott v. Scribner et al

Filing 4

ORDER requiring response to petition (28:2254), motion to dismiss due 5/11/07, opposition to motion due 6/11/07, or answer due 5/28/2007, Traverse due 6/27/2007. Signed by Magistrate Judge Cathy Ann Bencivengo on 3/21/07. (kaj)

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Scott v. Scribner et al Doc. 4 Case 3:07-cv-00492-J-CAB Document 4 Filed 03/21/2007 Page 1 of 3 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. LARRY SCRIBNER, Warden, et al., Respondents. P e t itio 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 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 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 is not in custody), Respondent shall file a motion to dismiss pursuant to Rule 4 of the Rules -1KEESHAWN EUGENE SCOTT, Petitioner, ORDER REQUIRING RESPONSE TO PETITION (28 U.S.C. 2254) Civil No. 07cv0492-J (CAB) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 07cv0492 Dockets.Justia.com Case 3:07-cv-00492-J-CAB Document 4 Filed 03/21/2007 Page 2 of 3 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 G o v e r n i n g 2254 Cases no later than May 11, 2007. The motion to dismiss shall not address t h e merits of Petitioner's claims, but rather shall address all grounds upon which Respondent c o n t e n d s dismissal without reaching the merits of Petitioner's claims is warranted.1 At the time t h e motion to dismiss is filed, Respondent shall lodge with the Court all records bearing on Respo n d en t's contention in this regard. A hearing date is not required for the motion to dismiss. 3 . If Respondent files a motion to dismiss, Petitioner shall file his opposition, if any, to t h e motion no later than June 11, 2007. At the time the opposition is filed, Petitioner shall lodge with the Court any records not lodged by Respondent which Petitioner believes may be relevant t o 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 May 28, 2007. At the time the answer is filed, Respondent shall lodge with the Court all records bearing on the merits of Petitioner's c l a i m s . The lodgments shall be accompanied by a notice of lodgment which shall be captioned " N o t i c e of Lodgment in 28 U.S.C. 2254 Habeas Corpus Case -- To Be Sent to Clerk's O f f i c e. " Respondent shall not combine separate pleadings, orders or other items into a co m bi ne d 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 June 27, 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. 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. 1 -2- 07cv0492 Case 3:07-cv-00492-J-CAB Document 4 Filed 03/21/2007 Page 3 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 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. D A T E D : March 21, 2007 19 20 21 22 23 24 25 26 27 28 -3C A T H Y ANN BENCIVENGO U n i t e d States Magistrate Judge 07cv0492

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