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Bernard v. Johnson

United States District Court, Ninth Circuit

July 11, 2013

KENDRA D. BERNARD, Plaintiff,
v.
DEBORAH K. JOHNSON, Warden, Defendant.

ORDER TO SHOW CAUSE

SAUNDRA BROWN ARMSTRONG, District Judge.

On June 28, 2007, Petitioner initiated this action by filing a document entitled "Motion to Toll Federal Time for Writ of Habeas Corpus" requesting that the Court stay these habeas proceedings so that Petitioner may exhaust her claims in state court. In that motion, Petitioner stated that her state habeas petition was still pending in the state superior court.

In an Order dated March 18, 2008, the Court stayed the petition and administratively closed the case while Petitioner exhausted state remedies.

On December 10, 2009, Petitioner wrote a letter to the Court indicating she had exhausted state remedies.

On March 10, 2010, Petitioner filed an Amended Petition.

In an Order dated June 10, 2013, the Court lifted the stay, reopened the instant action, and gave Petitioner leave to file a Second Amended Petition within twenty-eight days. The Court added:

If Petitioner fails to file a Second Amended Petition by the deadline, then her March 10, 2010 Amended Petition will be the operative petition in this action. The Court will review either her timely-filed Second Amended Petition or her March 10, 2010 Amended Petition in a separate written Order.

(June 10, 2013 Order at 3.) Twenty-eight days have passed since the Court issued its June 10, 2013 Order, and Petitioner has not filed a Second Amended Petition. Therefore, the Court will review her March 10, 2010 Amended Petition, which is now the operative petition in this action.

It does not appear from the face of the March 10, 2010 Amended Petition that it is without merit. Good cause appearing, the Court hereby issues the following orders:

1. The Clerk of the Court shall serve a copy of this Order, the June 10, 2013 Order (Docket No. 61), and the March 10, 2010 Amended Petition and all attachments thereto (Docket No. 51) upon Respondent and Respondent's attorney, the Attorney General of the State of California. The Clerk shall also serve a copy of this Order on Petitioner at her current address.

2. Respondent shall file with this Court and serve upon Petitioner, within sixty (60) days of the issuance of this Order, an Answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued. Respondent shall file with the Answer a copy of all portions of the relevant state records that have been transcribed previously and that are relevant to a determination of the issues presented by the petition.

3. If Petitioner wishes to respond to the Answer, she shall do so by filing a Traverse with the Court and serving it on Respondent within sixty (60) days of her receipt of the Answer. Should Petitioner fail to do so, the March 10, 2010 Amended Petition will be deemed submitted and ready for decision sixty (60) days after the date Petitioner is served with Respondent's Answer.

4. Respondent may file with this Court and serve upon Petitioner, within sixty (60) days of the issuance of this Order, a motion to dismiss on procedural grounds in lieu of an Answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If Respondent files such a motion, Petitioner shall file with the Court and serve on Respondent an opposition or statement of non-opposition to the motion within sixty (60) days of receipt of the motion, and Respondent shall file with the Court and serve on Petitioner a reply within fourteen (14) days of receipt of any opposition.

5. It is Petitioner's responsibility to prosecute this case. Petitioner must keep the Court and Respondent informed of any change of address and must comply with the Court's orders in a timely fashion. Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes while an action is pending must promptly file a notice of change of address specifying the new address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail directed to the pro se party by the Court has been returned to the Court as not deliverable, and (2) the Court fails to receive within sixty days of this return a written communication from the pro se party indicating a current address. See L.R. 3-11(b); see also Martinez v. Johnson , 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases).

Petitioner must also serve on Respondent's counsel all communications with the Court by mailing a true copy of the document to Respondent's counsel.

6. Extensions of time are not favored, though reasonable extensions will be granted. Any motion for an extension of time must be filed no later than fourteen (14) days prior to the deadline sought to be extended.

7. Deborah K. Johnson, the current warden of the prison where Petitioner is incarcerated, has been substituted as Respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.

IT IS SO ORDERED.


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