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Kevin Laquan Trice v. M. Mcdonald

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 6, 2011

KEVIN LAQUAN TRICE,
PETITIONER,
v.
M. MCDONALD, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER PERMITTING RESPONDENT TO FILE NO LATER THAN FOURTEEN (14) ) DAYS AFTER SERVICE FINAL BRIEFING CONCERNING PETITIONER'S MOTION ) FOR A STAY ORDER PERMITTING PETITIONER TO FILE A REPLY NO LATER THAN TWENTY (20) DAYS AFTER SERVICE OF ANY FURTHER BRIEFING BY RESPONDENT INFORMATIONAL ORDER TO RESPONDENT PROHIBITING FURTHER UNNECESSARY DELAY IN BRIEFING THIS MOTION

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 302 and 303.

Respondent filed a motion to dismiss on August 12, 2011, on the ground that some of the claims in the petition were unexhausted. A second, duplicative motion to dismiss was filed on August 15, 2011. Petitioner filed opposition on October 18, 2011. No reply was filed. Thus, the motion to dismiss is ripe for decision.

However, Petitioner filed motions for a stay and abeyance of the action on August 22, 2011, and on October 17, 2011, in which he sought a stay, including but not limited to a stay based on good cause pursuant to Rhines v. Weber, 544 U.S. 269, 277-78 (2005).

On November 1, 2011, Respondent filed what was entitled as a "CONDITIONAL NON-OPPOSITION TO PETITIONER'S REQUEST FOR A STAY AND ABEYANCE," in which Respondent stated opposition to a Rhines stay because of what Respondent perceives as a lack of good cause for a stay. Respondent suggested a stay pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), and further stated that if Petitioner "should disagree with this procedure," Respondent sought thirty (30) days to file formal opposition to the motion.

In light of Petitioner's failure to reply to Respondent's conditional non-opposition, Respondent is GRANTED thirty days in which to file a formal opposition to Petitioner's motion for a stay. Respondent is INFORMED that no further delay in Respondent's briefing of this motion will be permitted absent a particularized showing of good cause supported by a showing made by declaration under penalty of perjury.

Petitioner may FILE a reply to any formal opposition filed by Respondent no later than twenty (20) days after the date of service of Respondent's opposition.

IT IS SO ORDERED.

20111206

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