UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
December 12, 2008
GLENN MASON, PETITIONER,
JOHN POVEY, DIRECTOR RESPONDENT.
The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DIRECTING RESPONDENT TO SUBMIT SUPPLEMENTAL BRIEFING
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Now pending before the Court is Respondent's motion to dismiss the instant petition for writ of habeas corpus as untimely, filed October 15, 2008. (Court Doc. 13.) Petitioner filed a timely opposition on December 1, 2008. (Court Doc. 16.)
In Houston v. Lack, the Court held that a pro se habeas petitioner's notice of appeal is deemed filed on the date of its submission to prison authorities for mailing, as opposed to the date of its receipt by the court clerk. Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 2385 (1988). The Ninth Circuit Court of Appeals held in Saffold v. Newland, 250 F.3d 1282, 1288-89 (9th Cir. 2000 amended May 23, 2001) that the "mailbox" rule as provided for in Houston also applies to state and federal petitions with respect to calculating the statute of limitations under the AEDPA. Therefore under the mailbox rule, the Court generally deems the petitions filed on the date Petitioner signed them and presumably handed them to prison authorities for mailing.
See Rule 3(d) of the Federal Rules Governing Section 2254 Cases.
Respondent did not apply or address the applicability of the mailbox rule in determining the timeliness of the instant petition. Accordingly, it is HEREBY ORDERED that
1. Within twenty (20) days from the date of service of this order, Respondent shall submit a supplemental brief addressing the applicability and impact of the mailbox rule to the timeliness of the instant petition; and
2. Within twenty (20) days from the date Respondent files his supplemental brief, Petitioner may file a response.
IT IS SO ORDERED.
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