Flowers v. Horel

Filing 5

ORDER Reopening Case And Setting Briefing Schedule: The Court orders that this case be reopened. The Clerk of this Court shall promptly (a) serve the Petition and this Order on the Attorney General of California; and (b) serve this Order on Petitione r. If Respondent contends the Petition can be decided without the Court's reaching the merits of Petitioner's claims, Respondent shall file a motion to dismiss no later than 12/17/07. If Respondent files a motion to dismiss, Petitioner shal l file his opposition to the motion no later than 1/14/08. Unless the Court orders otherwise, Respondent shall not file a reply to Petitioner's opposition to a motion to dismiss. If Respondent does not contend that the Petition can be decided wi thout the Court reaching the merits of Petitioner's claims, Respondent shall file and serve an answer to the Petition no later than 1/7/08. Petitioner may file a traverse no later than 2/4/08. Unless otherwise ordered by the Court, this case sha ll be deemed submitted on the day following the date Petitioner's opposition to a motion to dismiss and/or his traverse is due. Signed by Magistrate Judge Barbara Lynn Major on 11/6/07. (mdc) Modified on 11/7/07 - Copies of Petition and this Order mailed to Atty Gen of Calif.; this Order mailed to Petitioner. (mdc)

Flowers v. Horel

Doc. 5

Case 3:07-cv-01785-WQH-BLM

Document 5

Filed 11/06/2007

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 v. ROBERT A. HOREL, Warden, Respondent. JOHNATHAN EDWARD FLOWERS, Petitioner, Civil No. 07cv1785-WQH (BLM) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

ORDER REOPENING CASE AND SETTING BRIEFING SCHEDULE

On September 10, 2007, Petitioner, proceeding pro se, submitted a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. In its September 26, 2007 Order, the Court dismissed this case without prejudice because Petitioner had failed to pay the filing fee or move to proceed in forma pauperis. Petitioner was instructed that to have this case reopened he had to satisfy the filing fee requirement no later than November 19, 2007. On October 30, 2007, Petitioner paid the filing fee pursuant to this Court's Order. The Court ORDERS that this case be reopened. Further, in accordance with Rule 4 of the rules governing petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and upon a preliminary review of the Petition, 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.
K:\COMMON\EVERYONE\_EFILE-PROSE\BLM\07cv1785-Reopen&Respond.wpd, 1167

-1-

07cv1785

Dockets.Justia.com

Case 3:07-cv-01785-WQH-BLM

Document 5

Filed 11/06/2007

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

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 any state remedies as to any ground for relief alleged in the Petition, or that the Petition is barred by the statute of limitations, or that the Petition is subject to dismissal under Rule 9 of the Rules Governing § 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 Governing § 2254 Cases no later than December 17, 2007. The motion to dismiss shall not address the merits of Petitioner's claims, but rather shall address all grounds upon which Respondent contends dismissal without reaching the merits of Petitioner's claims is warranted.1 At the time the motion to dismiss is filed, Respondent shall lodge with the Court all records bearing on Respondent'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 the motion no later than January 14, 2008. 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 to the Court's determination of the motion. 4. Unless the Court orders otherwise, Respondent shall not file a reply to Petitioner's

opposition to a motion to dismiss. If the motion is denied, the Court will afford Respondent adequate 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

reaching the merits of Petitioner's claims, Respondent shall file and serve an answer to the Petition, as well as points and authorities in support of such answer, no later than January 7, 2008. At the time the answer is filed, Respondent shall lodge with the Court all records bearing on the merits of Petitioner's claims. The lodgments shall be accompanied by a notice of lodgment which shall be 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,
If Respondent contends Petitioner has failed to exhaust any state remedies as to any ground for relief alleged in the Petition, the motion to dismiss shall also specify the state remedies still available to Petitioner.
K:\COMMON\EVERYONE\_EFILE-PROSE\BLM\07cv1785-Reopen&Respond.wpd, 1167

1

-2-

07cv1785

Case 3:07-cv-01785-WQH-BLM

Document 5

Filed 11/06/2007

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 28

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

February 4, 2008. Any traverse by Petitioner (a) shall state whether Petitioner admits or denies each allegation 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 asserted in the Petition. Grounds for relief withheld until the traverse will not be considered. No 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 required 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 accompanied by a declaration under penalty of perjury explaining why an extension of time is necessary. 8. Unless otherwise ordered by the Court, this case shall be deemed submitted on the

day following 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 that 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 disregarded by the Court. 10. Petitioner shall immediately notify the Court and counsel for Respondent of any

change of Petitioner's address. If Petitioner fails to keep the Court informed of where Petitioner may be contacted, this action will be subject to dismissal for failure to prosecute. IT IS SO ORDERED. DATED: November 6, 2007

BARBARA L. MAJOR United States Magistrate Judge
K:\COMMON\EVERYONE\_EFILE-PROSE\BLM\07cv1785-Reopen&Respond.wpd, 1167

-3-

07cv1785

Case 3:07-cv-01785-WQH-BLM

Document 5

Filed 11/06/2007

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
K:\COMMON\EVERYONE\_EFILE-PROSE\BLM\07cv1785-Reopen&Respond.wpd, 1167

Copies to:

ALL PARTIES

-4-

07cv1785