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Ontiveros v. Subia

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


May 4, 2010

EDWARD ONTIVEROS, PETITIONER,
v.
R.J. SUBIA, RESPONDENT.

ORDER

Petitioner is a state prisoner seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On March 12, 2010, the United States Court of Appeals for the Ninth Circuit affirmed in part and reversed in part this court's granting of defendant's motion to dismiss. In remanding the case, the Ninth Circuit explained that petitioner's claims in his pro se Opening Brief that he state habeas filing was delayed because he has a documented mental handicap and was the subject of prison lock-downs were sufficient to preserve an equitable tolling claim for review on appeal. The court also concluded that this court should have more fully developed the record with respect to petitioner's equitable tolling claim through an evidentiary hearing.

On March 18, 2010, counsel for respondent filed a request that judicial notice be taken of respondent's motion to dismiss. (Doc. No. 7.) Respondent's counsel noted that respondent had moved to dismiss the petition due to petitioner's failure to exhaust his claims in state court but that the court had not ruled on that aspect of the motion after concluding that the petition was time barred. Respondent requested that the court rule now rule on that previously unaddressed issue. On April 1, 2010, petitioner's counsel filed a motion requesting that a briefing schedule be set with respect to the exhaustion issue raised in respondent's motion to dismiss. That motion will be granted and a briefing schedule will be set.*fn1

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's motion for briefing schedule (Doc. No. 32) is granted;

2. Petitioner shall file, within twenty-eight days of the date of this order, any opposition to respondent's motion to dismiss for failure to exhaust;

3. Respondent's reply, if any, shall be filed and served within fourteen days after service of the opposition; and

4. The matter will be set for hearing, if deemed appropriate by the court, after the submission of the briefing.


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