United States District Court, E.D. California
ORDER GRANTING PETITIONER’S MOTION TO LIFT STAY
(DOC. 13) ORDER REQUIRING RESPONDENT TO FILE A RESPONSE ORDER
SETTING BRIEFING SCHEDULE ORDER DIRECTING CLERK OF COURT TO
SERVE DOCUMENTS ON ATTORNEY GENERAL
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
petition filed in this case raises seven claims for relief.
(Doc. 2). The Court stayed the action, at the
petitioner’s request, to allow him to exhaust the six
unexhausted claims. (Doc. 3). On March 2, 2016,
Petitioner’s counsel filed a motion to lift the stay
because all issues had finally been exhausted in state court.
(Doc. 13). Because the unexhausted issues in the petition are
now exhausted, the Court will life the stay and order
Respondent to file a response.
Court has conducted a preliminary review of the Petition. It
is not clear from the face of the Petition whether Petitioner
is entitled to relief. 28 U.S.C. § 2243. Accordingly,
pursuant to Rule 4 of the Rules Governing Section 2254 Cases
and Rule 16 of the Federal Rules of Civil Procedure,
1. Respondent SHALL file a response to the Petition1 within
60 days of the date of service of this order. See
Rule 4, Rules Governing Section 2254 Cases; Cluchette v.
Rushen, 770 F.2d 1469, 1473-1474 (9th Cir.
1985)(court has discretion to fix time for filing a
response). A Response can be made by filing one of the
A. An answer addressing the merits of the Petition.
Respondent SHALL include with the Answer any and all
transcripts or other documents necessary for the resolution
of the issues presented in the petition. See Rule 5,
Rules Governing Section 2254 Cases. Any argument by
Respondent that Petitioner has procedurally
defaulted a claim SHALL be made in the answer, but must
also address the merits of the claim asserted.
B. A motion to dismiss the petition. A motion to dismiss
SHALL include copies of all Petitioner’s state court
filings and dispositive rulings. See Rule 5, Rules
Governing Section 2254 Cases.
2. If Respondent files an answer to the petition, Petitioner
may file a traverse within 30 days of the date
Respondent’s answer is filed with the Court. If no
traverse is filed, the petition and answer are deemed
submitted at the expiration of the thirty days.
3. If Respondent files a motion to dismiss, Petitioner SHALL
file an opposition or Statement of non-opposition within 21
days of the date Respondent’s motion is filed with the
Court. If no opposition is filed, the motion to dismiss is
deemed submitted at the expiration of the thirty days. Any
reply to an opposition to the motion to dismiss SHALL be
filed within 7 days after the opposition is served.
4. Unless already submitted, both Respondent and Petitioner
SHALL complete and return to the Court within 30 days a
consent/decline form indicating whether the party consents or
declines to consent to the jurisdiction of the United States
Magistrate Judge pursuant to Title 28 U.S.C. §
5. The Clerk of the Court is DIRECTED to serve a copy of this
order on the Attorney General or her representative.
motions shall be submitted on the record and briefs filed
without oral argument unless otherwise ordered by the Court.
Local Rule 230(1). Extensions of time will only be granted
upon a showing of good cause. All provisions of Local Rule
110 are applicable to this order.