UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
September 5, 2011
JAVANCE J. HOUSE,
TERRI GONZALEZ, WARDEN
The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DEEMING RESPONDENT'S MOTION TO DISMISS TO BE WITHDRAWN ) (DOCS. 13, 21) ORDER SETTING A BRIEFING SCHEDULE
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting their consent in writings signed by the parties or their representatives and filed by Petitioner on May 12, 2011, and on behalf of Respondent on June 2, 2011.
Pending before the Court is Respondent's request to 1) withdraw the Respondent's motion to dismiss the petition as untimely that was filed on July 5, 2011, and 2) receive a briefing schedule for the filing of a "merits response" to the petition. (Doc. 21, 1-2.)
Respondent seeks to withdraw the motion because Respondent has reviewed evidence concerning Petitioner's argument that the statute of limitations was equitably tolled due to Petitioner's mental condition and to separation from legal materials due to an institutional transfer.
Although no local rule requires that a party seek permission to withdraw a motion, in this action the Court on May 4, 2011, ordered Respondent to file a response to the petition and set forth a briefing schedule. Fed. R. Civ. P. 16(b)(4) provides that a scheduling order shall not be modified except upon a showing of good cause and with the judge's consent.
It thus appears that Respondent is seeking to modify a scheduling order based on a determination that the merits of the motion require withdrawal of the motion and waiver of the defense of the statute of limitations.
The Court concludes that Respondent has shown good cause for withdrawal of the motion and modification of the briefing schedule set forth in the Court's order requiring Respondent to file a response to the petition.
Accordingly, it is ORDERED that:
1) Respondent's motion to dismiss the petition as untimely is DEEMED withdrawn; and
2) Respondent SHALL FILE an answer addressing the merits of the petition no later than sixty (60) days after the date of service of this order; and
3) 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 (30) days.
Requests for 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.
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