UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
June 13, 2012
R. DIAZ, WARDEN,
The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER DIRECTING RESPONDENT TO BRIEF ISSUE OF TIMELINESS OR FILE STATEMENT ORDER SETTING 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. He has consented to the jurisdiction of the magistrate judge pursuant to 28 U.S.C. § 636(c). Due to a possible conflict of interest, the case was reassigned to the docket of the undersigned on June 4, 2012.
The instant federal petition was filed on April 24, 2012. Petitioner raises eleven claims with respect to his 2007 conviction in Fresno County Superior Court. On May 22, 2012, he notified the Court that three of his claims were unexhausted and moved for stay and abeyance. Following a preliminary review of the petition, the Court finds that the petition may violate the statute of limitations set forth in 28 U.S.C. § 2244(d). However, the Court is without the necessary pleadings and records to make a determination. Normally, the Court would issue an order directing Respondent to file a responsive pleading including, inter alia, an answer to the petition. In this case, Petitioner has also filed a motion for stay. A stay of the petition could entail a lengthy delay, and if the petition is indeed untimely, the delay will have been unnecessary. In the interest of judicial efficiency, the Court will address the issue of timeliness prior to addressing the motion for stay. Respondent will be directed to brief timeliness of the instant petition. In the event Respondent believes the petition to be untimely, he is directed to file a motion to dismiss. In the event Respondent concedes the petition is timely, he is directed to file a statement to that effect. Petitioner will be granted leave to reply to Respondent's motion, in the event one is filed.
Accordingly, IT IS HEREBY ORDERED:
1) Within sixty (60) days of the date of service of this order, Respondent is DIRECTED to file a motion to dismiss or a statement concerning timeliness;
2) In the event a motion to dismiss is filed, Petitioner is GRANTED thirty (30) days to file an opposition;
3) In the event Petitioner files an opposition, Respondent is GRANTED fourteen (14) days to file a reply.
IT IS SO ORDERED.
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