Joiner v. Sutton
ORDER Denying Petitioner's Ex Parte 5 Motion for the Court to Take Into Submission the Habeas Petition; and Granting Respondent's 12 Motion for an Enlargement of Time to File Response. A response to the Petition must be filed on or b efore May 4, 2017. If Respondent files a motion to dismiss Petitioner must file his opposition, if any, to the motion no later than June 5, 2017. If Respondent files an answer to the Petition, Petitioner may file a traverse no later than June 5, 2017. No traverse can exceed ten pages. Signed by Magistrate Judge Bernard G. Skomal on 3/22/17. (All non-registered users served via U.S. Mail Service)(dlg)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
WARDELL NELSON JOINER, Jr.,
Case No.: 16cv2841 GPC (BGS)
(1) ORDER DENYING
PETITIONER’S EX PARTE
APPLICATION FOR THE COURT
TO TAKE INTO SUBMISSION THE
HABEAS PETITION [ECF NO. 5];
JOHN SUTTON, Warden,
(2) ORDER GRANTING
FOR ENLARGEMENT OF TIME TO
FILE RESPONSE [ECF NO. 12]
Petitioner, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas
Corpus (“Petition”) pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Due to Respondent’s
failure to file a Notice of Appearance, motion to dismiss or answer pursuant to the Court’s
December 2, 2016 Order (ECF No. 3), Petitioner filed an Ex Parte Application for the
Court to Take Into Submission the Habeas Petition requesting that the Court take the
Petition into submission without a response from Respondent and grant the relief sought.
(ECF No. 5.) The Court issued an Order to Show Cause on February 21, 2017 requiring
16cv2841 GPC (BGS)
Respondent to demonstrate why sanctions should not be imposed due to his failure to
comply with Court deadlines. (ECF No. 6).
On March 6, 2017, Respondent timely responded to the Order to Show Cause and
explained that administrative error caused his inadvertent failure to file a timely response
to the Petition. (ECF No. 10.) Petitioner maintains on reply that the Court should “proceed
directly to the merits of the [habeas] petition” without any response from Respondent.
(ECF No. 13.) Additionally, Respondent now requests an enlargement of time to respond
to the Petition due to a delay in receiving five requested state habeas petitions from San
Diego County Superior Court. (ECF No. 12.)
While the Court in no way condones Respondent’s tardiness, it must keep in mind
that a “sanction should be proportionate to the wrong.” See Vernon v. Lamarque, No. CIV
S-08-1499 MCE EFB P, 2010 WL 670680, at *1-2 (E.D. Cal. Feb. 19, 2010). Here,
Respondent timely responded to the Order to Show cause and has explained the basis for
his inadvertent failure to comply with the Court’s order. Further, he has demonstrated that
a response to the Petition is forthcoming. (See ECF No. 12.) Thus, good cause appearing,
Respondent’s application for an enlargement of time is GRANTED and Petitioner’s ex
parte application for the Court to take the Petition into submission is DENIED.
A response to the Petition must be filed on or before May 4, 2017. If Respondent
files a motion to dismiss pursuant to Rule 4 of the Rules Governing § 2254 Cases, Petitioner
must file his opposition, if any, to the motion no later than June 5, 2017. Respondent
must not file a reply to Petitioner’s opposition. If Respondent files an answer to the Petition
pursuant to Rule 5 of the Rules Governing § 2254 Cases, Petitioner may file a traverse to
matters raised in the answer no later than June 5, 2017. No traverse can exceed ten (10)
pages in length absent advance leave of Court for good cause shown.
IT IS SO ORDERED.
Dated: March 22, 2017
16cv2841 GPC (BGS)
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