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Felix Lucero v. Vincent Cullen

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


October 22, 2012

FELIX LUCERO, PETITIONER,
v.
VINCENT CULLEN, RESPONDENT.

ORDER

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 14, 2012, respondent filed a motion to dismiss the petition. Dckt. No. 16. On September 5, 2012, because petitioner had not timely filed either an opposition or a statement of non-opposition to respondent's motion, the undersigned issued an order directing petitioner to file an opposition or statement of non-opposition to the pending motion within 21 days. Dckt. No. 16. On October 16, 2012, after the 21 day period had passed, petitioner filed an opposition to the motion to dismiss and a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b). Dckt. Nos. 17, 18.

As judgment has not been entered in this case, petitioner's motion for relief from judgment will be denied. Although petitioner failed to timely file his opposition to respondent's motion, the court will consider his opposition in resolving respondent's motion to dismiss.

Further, respondent will be provided an opportunity to file a reply to petitioner's opposition.

Accordingly, it is ORDERED that:

1. Petitioner's motion for relief from judgment, Dckt. No. 18, is denied; and

2. Respondent may file a reply to petitioner's opposition within 14 days from the date this order is served.

20121022

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