Zaragoza v. Martel et al

Filing 20

ORDER (1) Adopting Magistrate Judge's Report and Recommendation, (2) Granting request to Dismiss unexhausted claims and (3) Requiring Response re 14 , 17 , 19 . The Court adopts the recommendation to deny the motion for a stay and abeyance. The Court dismisses without prejudice Petitioner's first through third claims for relief. Respondent shall file and serve an Answer to the Petition, and a memorandum of points and authorities in support of such answer, pursuant to Rule 5 of the Rul es Governing § 2254 Cases no later than May 19, 2011. At the time the answer is filed, Respondent shall lodge with the Court all records bearing on the merits of Petitioner's claim. 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." Petitioner may file a Traverse no later than June 20, 2011. No traverse shall exceed ten (10) pages in length. Signed by Judge Dana M. Sabraw on 4/19/11. (All non-registered users served via U.S. Mail Service)(lao)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PAUL ZARAGOZA AKA G. GARCIA,

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CASE NO. 09cv1598 DMS (WMC)

Petitioner,
vs.

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ORDER (1) ADOPTING
MAGISTRATE JUDGE’S
REPORT AND
RECOMMENDATION, (2)
GRANTING REQUEST TO
DISMISS UNEXHAUSTED
CLAIMS AND (3) REQUIRING
RESPONSE

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MATTHEW CATE,
Respondent.

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[Docket Nos. 14, 17, 19]
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On July 22, 2009, Petitioner Paul Zaragoza (“Petitioner”), a state prisoner proceeding pro se,

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filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On November 9, 2009,

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Respondent filed a motion to dismiss the petition on the grounds that some of Petitioner’s claims were

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unexhausted.

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Recommendation (“R&R”), recommending that the Court (1) find the petition is “mixed,” i.e., it

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contains exhausted and unexhausted claims, (2) provide Petitioner with a list of options on how to

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proceed, and (3) grant the motion to dismiss. This Court adopted the first two recommendations and

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provided Petitioner with a list of options on how to proceed with his case.

On July 6, 2010, Magistrate Judge William McCurine, Jr. issued a Report and

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In response, Petitioner filed the present motion for a stay and abeyance. The Magistrate Judge

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has issued an R&R recommending that the Court deny the motion and give Petitioner the further option
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to dismiss his unexhausted claims and proceed with his unexhausted claim or risk having his case

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dismissed. This Court, having reviewed de novo the Magistrate Judge’s R&R, and there being no

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objections filed thereto, adopts the recommendation to deny the motion for a stay and abeyance.

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After the R&R was issued and the time for filing objections had expired, Petitioner filed a

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request to dismiss his unexhausted claims and proceed with his one exhausted claim. There being no

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objection, and good cause appearing, the Court grants that request. Accordingly, the Court dismisses

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without prejudice Petitioner’s first through third claims for relief. As to Petitioner’s fourth claim, IT

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IS HEREBY ORDERED:

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Respondent shall file and serve an answer to the Petition, and a memorandum of points and

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authorities in support of such answer, pursuant to Rule 5 of the Rules Governing § 2254 Cases no later

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than May 19, 2011. At the time the answer is filed, Respondent shall lodge with the Court all records

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bearing on the merits of Petitioner’s claim. The lodgments shall be accompanied by a notice of

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lodgment which shall be captioned “Notice of Lodgment in 28 U.S.C. § 2254 Habeas Corpus Case

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— To Be Sent to Clerk’s Office.” Respondent shall not combine separate pleadings, orders or other

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items into a combined lodgment entry. Each item shall be numbered separately and sequentially.

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2.

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traverse by Petitioner (a) shall state whether Petitioner admits or denies each allegation of fact contained

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in the answer; (b) shall be limited to facts or arguments responsive to matters raised in the answer; and

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(c) shall not raise new grounds for relief that were not asserted in the Petition. Grounds for relief

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withheld until the traverse will not be considered. No traverse shall exceed ten (10) pages in length

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absent advance leave of Court for good cause shown.

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3.

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by this Order should be made in advance of the due date of the pleading, and the Court will grant such

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a request only upon a showing of good cause. Any such request shall be accompanied by a declaration

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under penalty of perjury explaining why an extension of time is necessary.

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4.

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the date Petitioner’s traverse is due.

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Petitioner may file a traverse to matters raised in the answer no later than June 20, 2011. Any

A request by a party for an extension of time within which to file any of the pleadings required

Unless otherwise ordered by the Court, this case shall be deemed submitted on the day following

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5.

Every document delivered to the Court must include a certificate of service attesting that a copy

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of such document was served on opposing counsel (or on the opposing party, if such party is not

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represented by counsel). Any document delivered to the Court without a certificate of service will be

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returned to the submitting party and will be disregarded by the Court.

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6.

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Petitioner’s address. If Petitioner fails to keep the Court informed of where Petitioner may be contacted,

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this action will be subject to dismissal for failure to prosecute.

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DATED: April 19, 2011

Petitioner shall immediately notify the Court and counsel for Respondent of any change of

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HON. DANA M. SABRAW
United States District Judge

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