Keigwin v. Lizarraga

Filing 13

Notice of Opportunity to Consent to Magistrate Judge; and Order Setting Briefing Schedule - Motion to Dismiss due 12/2/16, Opposition to Motion due 1/6/17; OR Answer by Respondent due 12/2/2016, Traverse by Petitioner due 1/6/2017. Signed by Magistrate Judge Nita L. Stormes on 10/3/16.(All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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KENT KEIGWIN,

Case No.: 16cv1451 GPC (NLS)
Petitioner,

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v.

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(1) NOTICE OF OPPORTUNITY TO
CONSENT TO MAGISTRATE
JUDGE JURISDICTION (28 U.S.C. §
636(c), F.R.C.P. 73), and

J. LIZARRAGA, Warden,
Respondent.

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(2) ORDER SETTING BRIEFING
SCHEDULE.

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On June 10, 2016, Petitioner, proceeding pro se, filed a Petition for Writ of Habeas

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Corpus pursuant to 28 U.S.C. § 2254, a motion for stay and abeyance, and a motion to

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proceed in forma pauperis (IFP). The district judge granted the IFP motion. After it was

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fully briefed, the magistrate judge issued a Report and Recommendation (R&R) on the

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motion for stay and abeyance. On September 30, 2016, the district judge adopted this

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court’s R&R and denied Petitioner’s motion for stay and abeyance as moot.

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Based on the procedural status of the case, the Court ORDERS:

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1.

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 Petitioner

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has failed to exhaust any state remedies as to any ground for relief alleged in the Petition,

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or that the Petition is barred by the statute of limitations, or that the Petition is subject to
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dismissal under Rule 9 of the Rules Governing § 2254 Cases, or that all of the claims are

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

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

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December 2, 2016. The motion to dismiss shall not address the merits of Petitioner’s

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claims, but rather shall address all grounds upon which Respondent contends dismissal

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without reaching the merits of Petitioner’s claims is warranted.1 At the time the motion

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to dismiss is filed, Respondent shall lodge with the Court all records bearing on

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Respondent’s contention in this regard. A hearing date is not required for the motion to

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dismiss.

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2.

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

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any, to the motion no later than January 6, 2017. At the time the opposition is filed,

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Petitioner shall lodge with the Court any records not lodged by Respondent which

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Petitioner believes may be relevant to the Court’s determination of the motion.

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3.

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 Court will

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afford Respondent adequate time to respond to Petitioner’s claims on the merits.

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4.

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 serve an

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answer to the Petition, as well as points and authorities in support of such answer, no later

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than December 2, 2016. At the time the answer is filed, Respondent shall lodge with the

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Court all records bearing on the merits of Petitioner’s claims. The lodgments shall be

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accompanied by a notice of lodgment which shall be captioned “Notice of Lodgment in

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28 U.S.C. § 2254 Habeas Corpus Case — To Be Sent to Clerk’s Office.” Respondent

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

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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.
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entry. Each item shall be numbered separately and sequentially.
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Petitioner may file a traverse to matters raised in the answer no later than

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January 6, 2017. Any traverse by Petitioner (a) shall state whether Petitioner admits or

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denies each allegation of fact contained in the answer; (b) shall be limited to facts or

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arguments responsive to matters raised in the answer; and (c) shall not raise new grounds

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for relief that were not asserted in the Petition. Grounds for relief withheld until the

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

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advance leave of Court for good cause shown.

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6.

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 of the

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

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Any such request shall be accompanied by a declaration under penalty of perjury

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explaining why an extension of time is necessary.

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7.

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 and/or his

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traverse is due.

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8.

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 the

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opposing party, if such party is not represented by counsel). Any document delivered to

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the Court without a certificate of service will be returned to the submitting party and

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disregarded by the Court.

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9.

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 informed of

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where Petitioner may be contacted, this action will be subject to dismissal for failure to

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prosecute.

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10.

Petitioner has consented to proceed before a United States Magistrate Judge.

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Respondent must execute and return either a “Consent to Exercise of Jurisdiction by a

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United States Magistrate Judge and Order of Reference” or a “Notice of Intent to Proceed
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before District Judge” to the Clerk of Court on or before November 4, 2016. The parties

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are free to withhold consent without adverse substantive consequences. The Clerk of

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Court must send the appropriate Southern District forms to Respondent along with this

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Order.

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IT IS SO ORDERED.
Dated: October 3, 2016

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16cv1451 GPC (NLS)