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Hall v. Diaz

United States District Court, Ninth Circuit

July 31, 2013

VINCENT HALL, Petitioner,
v.
RALPH M. DIAZ, Warden, Respondent.

ORDER FOR ATTORNEY TO FILE NOTICE OF APPEARANCE OR NOTICE OF NON-APPEARANCE

THELTON E. HENDERSON, District Judge.

On March 29, 2013, Petitioner Vincent Hall, an inmate at the California Substance Abuse Treatment Facility and State Prison, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. On April 24, 2013, the Court issued an Order Regarding Mixed Petition in which it found that Petitioner had filed a mixed petition containing exhausted and unexhausted claims because he had indicated in his petition that one of his claims was unexhausted. Doc. #2. The Court granted Petitioner thirty days from the date of the Order to inform the Court how he wished to proceed with his mixed petition. The Court notified Petitioner that failure to respond within thirty days would result in the dismissal of the petition without prejudice to filing a new petition containing only exhausted claims. Doc. #2.

On June 13, 2013, more than thirty days had passed and Petitioner had not notified the Court how he wanted to proceed with his mixed petition nor had he communicated with the Court in any manner. Therefore, the Court dismissed the petition without prejudice to refiling a new petition containing only exhausted claims. Doc. #3. On June 24, 2013, the mail containing this Order was returned to the Court as undeliverable because Petitioner's address was misstated. Doc. #4. The Court re-mailed its Order to Petitioner who filed a motion to reconsider the Order of Dismissal. Doc. #5. On July 22, 2013, the Court issued an order granting the motion for reconsideration, vacating the order of dismissal and re-opening the case. Doc. #6. In its Order, the Court noted that, from Petitioner's motion, it was apparent that he believed that he was represented by counsel and that counsel had not responded to the Court's orders because the Court had not mailed its orders to her. Therefore, in the July 22, 2013 Order, the Court ordered counsel to file a notice of appearance as counsel of record for Petitioner. The Court also ordered that Petitioner, either pro se or through counsel, respond to the Court's April 24, 2013 Order Regarding Mixed Petition. The Court granted Petitioner twenty-eight days from the date of the Order to file a response.

On July 25, 2013, Petitioner filed a letter in which he states that he is represented by Janice Lagerlof, 3929 24th Street, San Francisco, California 94114 (415)282-8849. He also states that he is sending the Court's orders to Ms. Lagerlof and expects her to respond to the Court's order on his behalf.

However, in order to represent Petitioner, counsel must be a registered user of the Court's electronic case filing system (ECF) and e-file a notice of appearance on behalf of Petitioner. See Civ. L.R. 5-1(c)(1) and (2)(A) (Obligation for attorney to register on ECF and e-file a notice of appearance). Counsel has not yet filed a notice of appearance on behalf of Petitioner. In his letter, Petitioner states that Ms. Lagerlof did not respond to the Court's orders because they were mailed to Petitioner and not to her. However, if Ms. Lagerlof was an ECF user and had e-filed her notice of appearance on behalf of Petitioner, she would receive electronic notice of the Court's orders. See Civ. L.R. 5-1(h) (service of electronically filed documents).

Accordingly, the Court orders as follows.

(1) The Clerk of the Court shall mail this Order to Petitioner and to Ms. Janice Lagerlof, 3929 24th Street, San Francisco, CA 94114.

(2) Within seven days from the date of this Order, Ms. Lagerlof must either file a notice of appearance in this case according to the Civil Local Rules or she must inform the Court that she is not representing Petitioner.

(3) Petitioner's response to the Court's April 24, 2013 Order Regarding Mixed Petition is due twenty-eight days from the date Ms. Lagerlof files her response with the Court. If Petitioner does not respond to the April 24, 2013 Order within this time, his petition will be dismissed without prejudice to filing a new petition containing only exhausted claims.

IT IS SO ORDERED.


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