Gutierrez v. Montgomery

Filing 5

Order Reopening Case and Setting Briefing Schedule - Motion to Dismiss due 5/22/2017, Opposition to Motion due 6/22/2017 OR Answer by Respondent due 5/22/2017, Traverse by Petitioner due 6/22/2017. Signed by Magistrate Judge Mitchell D. Dembin on 3/20/2017. (Copy of the Petition and a copy of this Order served on the Attorney General for the State of California) (Copy of this Order served on Petitioner) (All non-registered users served via U.S. Mail Service) (jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROLANDO GUTIERREZ,
Petitioner,

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v.

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Case No.: 17cv438-MMA (MDD)
ORDER REOPENING CASE AND
SETTING BRIEFING SCHEDULE

W.L. MONTGOMERY, Warden,

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Respondent.

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On March 1, 2017, Petitioner, proceeding pro se, submitted a Petition

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for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. In its March 9, 2017

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Order, the Court dismissed this case without prejudice because Petitioner

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failed to satisfy the filing fee requirement. Petitioner was instructed that to

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have this case reopened he had to either pay the filing fee or provide

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adequate proof of his inability to pay, no later than May 15, 2017.

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On March 13, 2017, Petitioner paid the $5.00 filing fee pursuant to this

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Court’s Order. Based on this Court’s review of the Petition, the Court

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ORDERS that this case be reopened. Further, in accordance with Rule 4 of

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the rules governing petitions for a writ of habeas corpus pursuant to 28

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U.S.C. § 2254, and upon a preliminary review of the Petition, IT IS
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17cv438-MMA (MDD)

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ORDERED that:
1.

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The Clerk of this Court shall promptly (a) serve a copy of the

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Petition and a copy of this Order on the Attorney General for the State of

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California, or her authorized agent; and (b) serve a copy of this Order on

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Petitioner.
2.

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If Respondent contends the Petition can be decided without the

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

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contends Petitioner has failed to exhaust any state remedies as to any ground

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for relief alleged in the Petition, or that the Petition is barred by the statute

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of 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 May 22, 2017. The motion to dismiss shall not address the merits of

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Petitioner’s claims, but rather shall address all grounds upon which

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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.
3.

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

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opposition, if any, to the motion no later than June 22, 2017. 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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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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Court’s determination of the motion.
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Unless the Court orders otherwise, Respondent shall not file a

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

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denied, the Court will afford Respondent adequate time to respond to

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Petitioner’s claims on the merits.

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5.

If Respondent does not contend that the Petition can be decided

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without the Court reaching the merits of Petitioner’s claims, Respondent

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shall file and serve an answer to the Petition, as well as points and

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authorities in support of such answer, no later than May 22, 2017. At the

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time the answer is filed, Respondent shall lodge with the Court all records

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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

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Lodgment in 28 U.S.C. § 2254 Habeas Corpus Case — To Be Sent to

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Clerk’s Office.” Respondent shall not combine separate pleadings, orders or

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other items into a combined lodgment entry. Each item shall be numbered

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separately and sequentially.

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6.

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

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later than June 22, 2017. 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

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in 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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7.

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

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

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due date of the pleading, and the Court will grant such a request only upon a
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17cv438-MMA (MDD)

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

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declaration under penalty of perjury explaining why an extension of time is

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necessary.

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8.

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

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

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dismiss and/or his traverse is due.

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9.

Every document delivered to the Court must include a certificate

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of service attesting that a copy of such document was served on opposing

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counsel (or on the opposing party, if such party is not represented by counsel).

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Any document delivered to the Court without a certificate of service will be

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returned to the submitting party and disregarded by the Court.

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10.

Petitioner shall immediately notify the Court and counsel for

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

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the Court informed of where Petitioner may be contacted, this action will be

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subject to dismissal for failure to prosecute.

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IT IS SO ORDERED.

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Dated: March 20, 2017

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