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Vernon v. Lamarque

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


April 28, 2009

KENNETH VERNON, PETITIONER,
v.
ANTHONY LAMARQUE, RESPONDENT.

ORDER

Petitioner is a state prisoner with counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. On March 5, 2009, the court ordered respondent to show cause why sanctions should not be imposed for the failure to timely file an answer or motion to dismiss. On March 20, 2009, respondent filed a response to the order to show cause, along with a motion to dismiss claims one, two and eight of the second amended petition on the ground that they were filed beyond the statute of limitations. Thereafter, on April 22, 2009, the court discharged the order to show cause.

On April 24, 2009, after the order to show cause was discharged, petitioner filed an opposition to the motion to dismiss, and argued that since the motion to dismiss is untimely, the court should "deem the proposed procedural defenses waived and [] proceed to the merits of the petition," which the court construes as a motion for sanctions. Pet.'s Opp'n to Resp.'s Mot. to Dism. at 2, 4; see also L.R. 78-230(e). In light of petitioner's related motion, the court hereby ORDERS that the May 13, 2009 hearing is continued and a hearing on both motions is set for May 27, 2009 at 10:00 a.m. in Courtroom 25 before the undersigned. It is further ORDERED that the parties shall comply with the following briefing schedule: (1) respondent shall file a reply to petitioner's opposition to the motion to dismiss, as well as an opposition to petitioner's motion for sanctions by May 11, 2009; and (2) petitioner shall file a reply to respondent's opposition to the motion for sanctions by May 18, 2009.

20090428

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