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HUYNH v. WOODFORD

United States District Court, S.D. California


September 19, 2005.

THUAN HUYNH, Petitioner,
v.
JEANNE S. WOODFORD, Director of the California Department of Corrections, Respondent.

The opinion of the court was delivered by: NITA STORMES, Magistrate Judge

ORDER GRANTING EX PARTE APPLICATION FOR LEAVE TO FILE LATE ANSWER OR OTHER RESPONSIVE PLEADING TO PETITION FOR WRIT OF HABEAS CORPUS
Before the Court is Respondent's Ex Parte Application for Leave to File Late Answer or other Responsive Pleading. By this Court's original scheduling order, Respondent was required to file a Motion to Dismiss no later than July 25, 2005, or an Answer no later than August 8, 2005. Respondent filed an application seeking an extension, through and including September 9, 2005, to file either a Motion to Dismiss or an Answer in this case. The Court granted Respondent's request on July 27, 2005; however, Respondent failed to file a Motion to Dismiss or Answer by the new deadline. Respondent now requests that the Court extend the deadline further to September 21, 2005. In support, counsel for Respondent asserts that due to inadvertence, "the extension was not properly calendared." [Application at 1.] Counsel states that she did not learn of the "inadvertent error" until September 13, 2005 when she immediately began drafting a responsive pleading on behalf of the Respondent. She anticipates having a responsive pleading ready for filing by September 21, 2005. [Declaration of Malich at ¶¶ at 3-5.] The Court is somewhat perplexed by counsel's apparent unawareness of the September 9 deadline, since this was the deadline proposed by Respondent in its earlier Application. Nonetheless, the Court finds that the interests of justice weigh in favor of granting the short extension sought by Respondent. The Court advises, however, that further extensions shall not be granted to Respondent based on failure to calendar the Court's scheduling orders. All parties are expected to read and comply with this Court's orders. Good cause appearing,

IT IS HEREBY ORDERED that the Application is GRANTED. Briefing in the case shall proceed as follows:

  1. If Respondent contends the Petition can be decided without the Court's reaching the merits of Petitioner's claims (e.g., because Respondent contends Petitioner has failed to exhaust any state remedies as to any ground for relief alleged in the Petition, or that the Petition is barred by the statute of limitations, or that the Petition is subject to dismissal under Rule 9 of the Rules Governing § 2254 Cases, or that all of the claims are procedurally defaulted, or that Petitioner is not in custody), Respondent shall file a motion to dismiss pursuant to Rule 4 of the Rules Governing § 2254 Cases no later than September 21, 2005. The motion to dismiss shall not address the merits of Petitioner's claims, but rather shall address all grounds upon which Respondent contends dismissal without reaching the merits of Petitioner's claims is warranted.*fn1 At the time the motion to dismiss is filed, Respondent shall lodge with the Court all records bearing on Respondent's contention in this regard. The lodgments shall be accompanied by a notice of lodgment which shall be captioned "Notice of Lodgment in 28 U.S.C. § 2254 Habeas Corpus Case To Be Sent to Clerk's Office." A hearing date is not required for the motion to dismiss.

  2. If Respondent files a motion to dismiss, Petitioner shall file his opposition to the motion, if any, no later than October 19, 2005. At the time the opposition is filed, Petitioner shall lodge with the Court any records not lodged by Respondent which Petitioner believes may be relevant to the Court's determination of the motion. 3. Unless the Court orders otherwise, Respondent shall not file a reply to Petitioner's opposition to a motion to dismiss. If the motion is denied, the Court will afford Respondent adequate time to respond to Petitioner's claims on the merits.

  4. If Respondent does not contend that the Petition can be decided without the Court reaching the merits of Petitioner's claims, Respondent shall file and serve an answer to the Petition no later than September 21, 2005. At the time the answer is filed, Respondent shall lodge with the Court all records bearing on the merits of Petitioner's claims. The lodgments shall be accompanied by a notice of lodgment which shall be captioned "Notice of Lodgment in 28 U.S.C. § 2254 Habeas Corpus Case To Be Sent to Clerk's Office."

  5. Petitioner may file a traverse to matters raised in the answer no later than October 19, 2005. Any traverse by Petitioner (a) shall state whether Petitioner admits or denies each allegation of fact contained in the answer; (b) shall be limited to facts or arguments responsive to matters raised in the answer; and (c) shall not raise new grounds for relief that were not asserted in the Petition. Grounds for relief withheld until the traverse will not be considered. The traverse shall not exceed ten (10) pages in length absent advance leave of Court and for good cause shown.

  6. All other terms and conditions of the Court's scheduling orders filed June 27, 2005, and July 27, 2005 shall remain in full force and effect.

  IT IS SO ORDERED.

20050919

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