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Joe Earl Shepard v. F.X. Chavez

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


April 4, 2011

JOE EARL SHEPARD, PETITIONER,
v.
F.X. CHAVEZ, RESPONDENT.

ORDER

Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus. See 28 U.S.C. § 2254. On February 10, 2011, respondent filed a motion to dismiss the petition as barred by the statute of limitations. Dckt. No. 12. Petitioner opposed the motion, arguing that the statute of limitations should be equitably tolled because of his attorney's gross negligence. Dckt. No. 14. Respondent now requests, without conceding the issue of timeliness, that the motion to dismiss be withdrawn and that the court set a briefing schedule setting respondent's merits response to be due 60 days from the date of the court's ruling. Dckt. No. 15. The court will grant respondent's request.

Accordingly, it is hereby ORDERED that:

1. Respondent's March 18, 2011 request is granted and the February 10, 2011 motion to dismiss is deemed withdrawn.

2. Respondent shall file and serve an answer, and not a motion, in response to petitioner's application within 60 days from the date of this order. See Rule 4, Fed. R. Governing § 2254 Cases. Any response shall be accompanied by any and all transcripts or other documents relevant to the determination of the issues presented in the application. See Rules 4, 5, Fed. R. Governing § 2254 Cases.

3. Petitioner's reply, if any, shall be filed and served within 30 days of service of an answer.

20110404

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