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Green v. Harrison

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 3, 2008

DENAIL SHANE GREEN, PETITIONER,
v.
CHARLES M. HARRISON, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Hon. Leo S. Papas U.S. Magistrate Judge

ORDER FINDING CLAIM EXHAUSTED ORDER TO RESPOND TO PETITION

On April 2, 2008, the Court issued a Notice Regarding Possible Dismissal of Petition for Failure to Exhaust State Court Remedies (hereafter "Notice"). In the Notice, the Court preliminarily found that Claim no. 6 in the Petition was not exhausted. Therefore, the Court gave Petitioner four options regarding how to proceed with his Petition.

The first option was for Petitioner to file further papers to demonstrate that he has exhausted the claim that the Court found to be unexhausted. On September 2, 2008, Petitioner filed his Reply To Court's Notice Regarding Failure to Exhaust State Court Remedies (hereafter "Reply").

The Reply correctly indicates that the claim at issue was exhausted in the state courts.

Therefore, IT IS ORDERED that:

1. Respondent shall file and serve an answer to the Petition pursuant to Rule 5 of the Rules Governing § 2254 Cases no later than November 3, 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."

2. Petitioner may file a traverse to matters raised in the answer no later than December 3, 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.

a. A request by a party for an extension of time within which to file any of the pleadings required by this Order should be made in advance of the due date of the pleading, and the Court will grant such a request only upon a showing of good cause. Any such request shall be accompanied by a declaration under penalty of perjury explaining why an extension of time is necessary.

b. Unless otherwise ordered by the Court, this case shall be deemed submitted on the day following the date Petitioner's opposition to a motion to dismiss and/or his traverse is due.

c. Every document delivered to the Court must include a certificate of service attesting that a copy of such document was served on opposing counsel (or on the opposing party, if such party is not represented by counsel). Any document delivered to the Court without a certificate of service will be returned to the submitting party and will be disregarded by the Court.

d. Petitioner shall immediately notify the Court and counsel for Respondent of any change of Petitioner's address. If Petitioner fails to keep the Court informed of where Petitioner may be contacted, this action will be subject to dismissal for failure to prosecute.

IT IS SO ORDERED.

20080903

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