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Jerry Fuentes v. F.X. Chavez

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


July 6, 2012

JERRY FUENTES, PETITIONER,
v.
F.X. CHAVEZ, RESPONDENT.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

This petition for relief under 28 U.S.C. § 2254 was filed pro se by petitioner on August 23, 2011. On October 5, 2011, the court directed respondent to answer the petition, and, on December 1, 2011, respondent moved to dismiss the petition as untimely filed. On March 13, 2012, the court vacated the motion to dismiss, subject to reinstatement, and granted petitioner's motion to appoint counsel. Counsel was appointed for the limited purpose of responding to the motion to dismiss. On May 1, 2012, respondent re-noticed the motion to dismiss, scheduling a hearing before the undersigned on July 19, 2012.

Petitioner filed his opposition to the motion to dismiss on June 27, 2012, and, in the opposition, requested discovery. Respondent has now moved for an extension of time to file his reply, advising the court that he needs additional time to compile the documents requested by petitioner in his opposition. Respondent additionally asks to re-schedule the July 19, 2012 hearing.

The court anticipates that the December 1, 2011 motion to dismiss may become stale, because the issues as originally articulated in the motion to dismiss and the opposition may change in light of the discovered documents, and the parties will need additional time to brief the issues raised after discovery is completed. Accordingly, the court will vacate the motion to dismiss, originally filed on December 1, 2011 and re-instated on May 1, 2012, without prejudice to renewal after the respondent has provided petitioner with the documents petitioner has requested.

IT IS HEREBY ORDERED that:

1. The hearing scheduled for July 19, 2012 before the undersigned is vacated;

2. Respondent's motion for an extension of time (Doc. No. 25) is denied as unnecessary;

3. Petitioner's request for discovery, contained in his opposition to the motion to dismiss (Doc. No. 24) is granted;

4. The parties shall complete discovery within 30 days of the filing date of this order;

5. The limited appointment of counsel, as ordered in this court's March 13, 2012 order, is extended to include representation of the petitioner for the purpose of conducting discovery;

6. The motion to dismiss, filed December 1, 2011 and re-instated May 1, 2012 (Doc. No. 9), is vacated without prejudice to re-filing after the completion of discovery; and

7. Respondent shall file a response to the petition within 60 days of the filing date of this order.

20120706

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