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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROLANDO GUTIERREZ, Petitioner, 12 13 v. 14 Case No.: 17cv438-MMA (MDD) ORDER REOPENING CASE AND SETTING BRIEFING SCHEDULE W.L. MONTGOMERY, Warden, 15 Respondent. 16 17 On March 1, 2017, Petitioner, proceeding pro se, submitted a Petition 18 for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. In its March 9, 2017 19 Order, the Court dismissed this case without prejudice because Petitioner 20 failed to satisfy the filing fee requirement. Petitioner was instructed that to 21 have this case reopened he had to either pay the filing fee or provide 22 adequate proof of his inability to pay, no later than May 15, 2017. 23 On March 13, 2017, Petitioner paid the $5.00 filing fee pursuant to this 24 Court’s Order. Based on this Court’s review of the Petition, the Court 25 ORDERS that this case be reopened. Further, in accordance with Rule 4 of 26 the rules governing petitions for a writ of habeas corpus pursuant to 28 27 U.S.C. § 2254, and upon a preliminary review of the Petition, IT IS 1 17cv438-MMA (MDD) 1 ORDERED that: 1. 2 The Clerk of this Court shall promptly (a) serve a copy of the 3 Petition and a copy of this Order on the Attorney General for the State of 4 California, or her authorized agent; and (b) serve a copy of this Order on 5 Petitioner. 2. 6 If Respondent contends the Petition can be decided without the 7 Court’s reaching the merits of Petitioner’s claims (e.g., because Respondent 8 contends Petitioner has failed to exhaust any state remedies as to any ground 9 for relief alleged in the Petition, or that the Petition is barred by the statute 10 of limitations, or that the Petition is subject to dismissal under Rule 9 of the 11 Rules Governing § 2254 Cases, or that all of the claims are procedurally 12 defaulted, or that Petitioner is not in custody), Respondent shall file a motion 13 to dismiss pursuant to Rule 4 of the Rules Governing § 2254 Cases no later 14 than May 22, 2017. The motion to dismiss shall not address the merits of 15 Petitioner’s claims, but rather shall address all grounds upon which 16 Respondent contends dismissal without reaching the merits of Petitioner’s 17 claims is warranted.1 At the time the motion to dismiss is filed, Respondent 18 shall lodge with the Court all records bearing on Respondent’s contention in 19 this regard. A hearing date is not required for the motion to dismiss. 3. 20 If Respondent files a motion to dismiss, Petitioner shall file his 21 opposition, if any, to the motion no later than June 22, 2017. At the time the 22 opposition is filed, Petitioner shall lodge with the Court any records not 23 lodged by Respondent which Petitioner believes may be relevant to the 24 25 26 27 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. 1 2 17cv438-MMA (MDD) 1 2 Court’s determination of the motion. 4. Unless the Court orders otherwise, Respondent shall not file a 3 reply to Petitioner’s opposition to a motion to dismiss. If the motion is 4 denied, the Court will afford Respondent adequate time to respond to 5 Petitioner’s claims on the merits. 6 5. If Respondent does not contend that the Petition can be decided 7 without the Court reaching the merits of Petitioner’s claims, Respondent 8 shall file and serve an answer to the Petition, as well as points and 9 authorities in support of such answer, no later than May 22, 2017. At the 10 time the answer is filed, Respondent shall lodge with the Court all records 11 bearing on the merits of Petitioner’s claims. The lodgments shall be 12 accompanied by a notice of lodgment which shall be captioned “Notice of 13 Lodgment in 28 U.S.C. § 2254 Habeas Corpus Case — To Be Sent to 14 Clerk’s Office.” Respondent shall not combine separate pleadings, orders or 15 other items into a combined lodgment entry. Each item shall be numbered 16 separately and sequentially. 17 6. Petitioner may file a traverse to matters raised in the answer no 18 later than June 22, 2017. Any traverse by Petitioner (a) shall state whether 19 Petitioner admits or denies each allegation of fact contained in the answer; 20 (b) shall be limited to facts or arguments responsive to matters raised in the 21 answer; and (c) shall not raise new grounds for relief that were not asserted 22 in the Petition. Grounds for relief withheld until the traverse will not be 23 considered. No traverse shall exceed ten (10) pages in length absent advance 24 leave of Court for good cause shown. 25 7. A request by a party for an extension of time within which to file 26 any of the pleadings required by this Order should be made in advance of the 27 due date of the pleading, and the Court will grant such a request only upon a 3 17cv438-MMA (MDD) 1 showing of good cause. Any such request shall be accompanied by a 2 declaration under penalty of perjury explaining why an extension of time is 3 necessary. 4 8. Unless otherwise ordered by the Court, this case shall be deemed 5 submitted on the day following the date Petitioner’s opposition to a motion to 6 dismiss and/or his traverse is due. 7 9. Every document delivered to the Court must include a certificate 8 of service attesting that a copy of such document was served on opposing 9 counsel (or on the opposing party, if such party is not represented by counsel). 10 Any document delivered to the Court without a certificate of service will be 11 returned to the submitting party and disregarded by the Court. 12 10. Petitioner shall immediately notify the Court and counsel for 13 Respondent of any change of Petitioner’s address. If Petitioner fails to keep 14 the Court informed of where Petitioner may be contacted, this action will be 15 subject to dismissal for failure to prosecute. 16 IT IS SO ORDERED. 17 18 Dated: March 20, 2017 19 20 21 22 23 24 25 26 27 4 17cv438-MMA (MDD)

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