UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
February 15, 2008
CLARKE SHELDON LOWE, PETITIONER,
JAMES E. TILTON, SECRETARY, RESPONDENT.
The opinion of the court was delivered by: Cathy Ann Bencivengo United States Magistrate Judge
ORDER GRANTING MOTION FOR AN ENLARGEMENT OF TIME TO FILE DISMISS OR ANSWER RESPONDENT'S MOTION TO [Doc. No. 7.]
Petitioner, a state prisoner, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 [Doc. No. 1] and an Amended Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. §2254 by a Person in State Custody. [Doc. No. 2.] On January 18, 2008, Respondent filed a motion for an enlargement of time to file a motion to dismiss or answer. [Doc. No. 5.] On January 18, 2008, the court granted that motion. [Doc. No. 6.] Respondent has now filed another motion for an enlargement of time to file a motion to dismiss or answer. [Doc. No. 7.] Good cause having been shown, Respondent's request for an enlargement of time is GRANTED. However, NO FURTHER REQUESTS OF ENLARGEMENT OF TIME TO FILE A MOTION TO DISMISS OR ANSWER W ILL BE GRANTED ABSENT EXTRAORDINARY CIRCUMSTANCES.
THE COURT FURTHER ORDERS THAT:
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 March 24, 2008. 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. A hearing date is not required for the motion to dismiss.
2. If Respondent files a motion to dismiss, Petitioner shall file his opposition, if any, to the motion no later than April 24, 2008. 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, and a memorandum of points and authorities in support of such answer, pursuant to Rule 5 of the Rules Governing § 2254 Cases no later than April 7, 2008. 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." Respondent shall not combine separate pleadings, orders or other items into a combined lodgment entry. Each item shall be numbered separately and sequentially.
5. Petitioner may file a traverse to matters raised in the answer no later than May 7, 2008. 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. No traverse shall exceed ten (10) pages in length absent advance leave of Court for good cause shown.
All other rulings set forth in this Court's order of December 4, 2007 [Doc. No. 3] shall remain in effect.
NO FURTHER REQUESTS OF ENLARGEMENT OF TIME TO FILE A MOTION TO DISM ISS OR ANSWER WILL BE GRANTED ABSENT EXTRAORDINARY CIRCUMSTANCES.
IT IS SO ORDERED.