UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
June 1, 2011
FRANK W. TRUDEAU,
D. L. RUNNELS, WARDEN,
The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER SETTING BRIEFING SCHEDULE FOLLOWING REMAND FROM THE NINTH CIRCUIT COURT OF APPEALS
[Docs. 79. 80]
Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is represented by Carolyn D. Phillips, Esq.
On October 29, 2008, the instant petition for writ of habeas corpus was dismissed as untimely and judgment was entered. On November 19, 2008, Petitioner filed a notice of appeal in the Ninth Circuit Court of Appeals. On February 2, 2011, the Ninth Circuit found that the petition was timely and remanded the action back to this Court. Pursuant to the Ninth Circuit Court of Appeals' order and Rule 4 of the Rules Governing Section 2254 Cases and Rule 16 of the Federal Rules of Civil Procedure, *fn1 the Court HEREBY ORDERS:
1. Respondent SHALL FILE a ANSWER addressing the merits of the Petition *fn2 within SIXTY (60) days of the date of service of this order. See Rule 4, Rules Governing Section 2254 Cases; Cluchette v. Rushen, 770 F.2d 1469, 1473-1474 (9 th Cir. 1985) (court has discretion to fix time for filing a response). Respondent SHALL INCLUDE with the Answer any and all transcripts or other documents necessary for the resolution of the issues presented in the Petition. See Rule 5, Rules Governing Section 2254 Cases. In the event Respondent argues that Petitioner has procedurally defaulted a claim in the ANSWER, Respondent must also address the merits of the claim asserted.
2. After Respondent files an Answer to the Petition, Petitioner MAY FILE a Traverse within THIRTY (30) days of the date Respondent's Answer is filed with the Court. If no Traverse is filed, the Petition and Answer are deemed submitted at the expiration of the thirty days.
3. The Clerk of the Court is DIRECTED to SERVE a copy of this order on the Attorney General or his representative.
All motions shall be submitted on the record and briefs filed without oral argument unless otherwise ordered by the Court. Local Rule 230(l). Extensions of time will only be granted upon a showing of good cause. All provisions of Local Rule 110 are applicable to this order.
IT IS SO ORDERED.