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Cadena v. Hall

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


December 3, 2007

MARTIN CADENA, PETITIONER,
v.
G. HALL, WARDEN OF CRC, RESPONDENT.

The opinion of the court was delivered by: Cathy Ann Bencivengo United States Magistrate Judge

ORDER DENYING AS MOOT PETITIONER'S REQUEST TO RESCIND PETITIONER'S TRAVERSE REPLY BRIEF AND PROCEED WITH 2254 HABEAS PETITION [Doc. No. 19]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On March 15, 2007, this Court lifted a stay in this matter and allowed the underlying petition for writ of habeas corpus to go forward [Doc. No. 14.] The Court ordered that Respondent file either a motion to dismiss or an answer to the petition by May 1, 2007. The Court further ordered that, if an answer was filed, Petitioner could file a traverse to matters raised in the answer no later than June 1, 2007.

Respondent filed an answer to the petition on May 1, 2007. On May 24, 2007, the Court received Petitioner's traverse [Doc. No. 18.] Initially, the traverse was believed to be untimely, but then was recognized by this Court as timely. Therefore, on May 30, 2007, this Court allowed the traverse to be filed nunc pro tunc [Doc. No.17.]

In the Notice of Request to Rescind Petitioner's Traverse Reply Brief and Proceed with 2254 habeas Petition [Doc. No. 19], it appears that Petitioner believes that the discrepancy order issued by this Court on May 30, 2007, somehow rejected his traverse and that, as a result, his petition for writ of habeas corpus cannot go forward. The discrepancy order, however, actually allowed his traverse to be filed. The case is now deemed fully briefed, is proceeding in the normal course, and is under submission by this Court. Therefore Petitioner's request to rescind Petitioner's traverse reply brief and proceed with 2254 habeas petition is DENIED as moot.

IT IS SO ORDERED.

20071203

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