Redd v. Trimble et al

Filing 9

ORDER granting 7 Motion for Extension of Time to Answer: Motion to Dismiss due 9/23/11, Opposition to Motion due 10/24/11 OR Answer by Respondent due 9/30/11, Traverse by Petitioner due 10/28/11. Signed by Magistrate Judge William McCurine, Jr on 8/30/11. (All non-registered users served via U.S. Mail Service)(lmt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DAVID ANDREW REDD

CASE NO. 11-cv-1275 LAB (WMc)
Plaintiff,

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ORDER GRANTING
RESPONDENT’S MOTION FOR
EXTENSION OF TIME
[DOC. NO. 7.]

vs.
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TRIMBLE, WARDEN, ET. AL.
Defendants.

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The Court has received Respondent’s application for an enlargement of time to file a

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response. [ECF. No. 7.] Good cause appearing, Respondent’s application is GRANTED.

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IT IS ORDERED that:

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a.

If Respondent contends the Petition can be decided without the Court’s

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reaching the merits of Petitioner’s claims (e.g., because Respondent contends

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Petitioner has failed to exhaust any state remedies as to any ground for relief

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alleged in the Petition, or that the Petition is barred by the statute of

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limitations, or that the Petition is subject to dismissal under Rule 9 of the

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Rules Governing § 2254 Cases, or that all of the claims are procedurally

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defaulted, or that Petitioner is not in custody), Respondent shall file a motion

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to dismiss pursuant to Rule 4 of the Rules Governing § 2254 Cases no later

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than September 23, 2011. The motion to dismiss shall not address the merits

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of Petitioner’s claims, but rather shall address all grounds upon which
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11-cv-1275 LAB (WMc)

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Respondent contends dismissal without reaching the merits of Petitioner’s

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claims is warranted.1 At the time the motion to dismiss is filed, Respondent

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shall lodge with the Court all records bearing on Respondent’s contention in

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this regard. A hearing date is not required for the motion to dismiss.

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b.

If Respondent files a motion to dismiss, Petitioner shall file his opposition,

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if any, to the motion no later than October 24, 2011. At the time the

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opposition is filed, Petitioner shall lodge with the Court any records not

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lodged by Respondent which Petitioner believes may be relevant to the

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Court’s determination of the motion.

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c.

Unless the Court orders otherwise, Respondent shall not file a reply to

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Petitioner’s opposition to a motion to dismiss. If the motion is denied, the

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Court will afford Respondent adequate time to respond to Petitioner’s claims

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on the merits.

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d.

If Respondent does not contend that the Petition can be decided without the

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Court reaching the merits of Petitioner’s claims, Respondent shall file and

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serve an answer to the Petition, and a memorandum of points and authorities

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in support of such answer, pursuant to Rule 5 of the Rules Governing § 2254

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Cases no later than September 30, 2011. At the time the answer is filed,

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Respondent shall lodge with the Court all records bearing on the merits of

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Petitioner’s claims. 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.

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§ 2254 Habeas Corpus Case — To Be Sent to Clerk’s Office.”

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Respondent shall not combine separate pleadings, orders or other items into a

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combined lodgment entry. Each item shall be numbered separately and

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sequentially.

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e.

Petitioner may file a traverse to matters raised in the answer no later than

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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.
11-cv-1275 LAB (WMc)
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October 28, 2011. Any traverse by Petitioner (a) shall state whether

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Petitioner admits or denies each allegation of fact contained in the answer;

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

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answer; and (c) shall not raise new grounds for relief that were not asserted in

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the Petition. Grounds for relief withheld until the traverse will not be

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considered. No traverse shall exceed ten (10) pages in length absent advance

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leave of Court for good cause shown.

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f.

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

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pleadings required by this Order should be made in advance of the due date

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of the pleading, and the Court will grant such a request only upon a showing

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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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g.

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

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on the day following the date Petitioner’s opposition to a motion to dismiss

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and/or his traverse is due.

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h.

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

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attesting that a copy of such document was served on opposing counsel (or on

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the opposing party, if such party is not represented by counsel). Any

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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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i.

Petitioner shall immediately notify the Court and counsel for Respondent of

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any change of Petitioner’s address. If Petitioner fails to keep the Court

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informed of where Petitioner may be contacted, this action will be subject to

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dismissal for failure to prosecute.

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IT IS SO ORDERED.
DATED: August 30, 2011

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Hon. William McCurine, Jr.
U.S. Magistrate Judge, U.S. District Court

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11-cv-1275 LAB (WMc)