United States District Court, S.D. California
ORDER REQUIRING RESPONSE TO PETITION (28 U.S.C.
Bernard G. Skomal United States Magistrate Judge
a state prisoner proceeding pro se and in forma pauperis, has
filed a Petition for a Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254. In accordance with Rule 4 of the rules
governing petitions for a writ of habeas corpus pursuant to
28 U.S.C. § 2254, and upon a preliminary review of the
Petition, IT IS ORDERED that:
Clerk of this Court must promptly (a) serve a copy of the
Petition and a copy of this Order on the Attorney General for
the State of California, or her authorized agent; and (b)
serve a copy of this Order on Petitioner.
Respondent must file a “Notice of Appearance” no
later than May 8, 2017.
Respondent contends the Petition can be decided without the
Court's reaching the merits of Petitioner's claims
(e.g., because Respondent contends Petitioner has failed to
exhaust any state remedies as to any ground for relief
alleged in the Petition, or that the Petition is barred by
the statute of limitations, or that the Petition is subject
to dismissal under Rule 9 of the Rules Governing § 2254
Cases, or that all of the claims are procedurally defaulted,
or that Petitioner is not in custody), Respondent must file a
motion to dismiss pursuant to Rule 4 of the Rules Governing
§ 2254 Cases no later than July 10, 2017. The motion to
dismiss must not address the merits of Petitioner's
claims, but rather must address all grounds upon which
Respondent contends dismissal without reaching the merits of
Petitioner's claims is warranted. At the time the motion to
dismiss is filed, Respondent must lodge with the Court all
records bearing on Respondent's contention in this
regard. A hearing date is not required for the
motion to dismiss.
Respondent files a motion to dismiss, Petitioner must file
his opposition, if any, to the motion no later than August
21, 2017. At the time the opposition is filed, Petitioner
must lodge with the Court any records not lodged by
Respondent which Petitioner believes may be relevant to the
Court's determination of the motion.
Unless the Court orders otherwise, Respondent must not file a
reply to Petitioner's opposition to a motion to dismiss.
If the motion is denied, the Court will afford Respondent
adequate time to respond to Petitioner's claims on the
Respondent does not contend that the Petition can be decided
without the Court reaching the merits of Petitioner's
claims, Respondent must file and serve an answer to the
Petition, and a memorandum of points and authorities in
support of such answer, pursuant to Rule 5 of the Rules
Governing § 2254 Cases no later than July 10,
2017. At the time the answer is filed, Respondent must
lodge with the Court all records bearing on the merits of
Petitioner's claims. The lodgments must be accompanied by
a notice of lodgment which must be captioned
“Notice of Lodgment in 28 U.S.C. § 2254 Habeas
Corpus Case - To Be Sent to Clerk's Office.”
Respondent must not combine separate pleadings, orders or
other items into a combined lodgment entry. Each item must be
numbered separately and sequentially.
Petitioner may file a traverse to matters raised in the
answer no later than August 21, 2017. Any traverse
by Petitioner (a) must state whether Petitioner admits or
denies each allegation of fact contained in the answer; (b)
must be limited to facts or arguments responsive to matters
raised in the answer; and (c) must not raise new grounds for
relief that were not asserted in the Petition. Grounds for
relief withheld until the traverse will not be considered. No
traverse can exceed ten (10) pages in length absent advance
leave of Court for good cause shown.
request by a party for an extension of time within which to
file any of the pleadings required by this Order must be made
at least seven (7) days in advance of the due date of the
pleading, and the Court will grant such a request only upon a
showing of good cause. Any such request must be accompanied
by a declaration under penalty of perjury explaining why an
extension of time is necessary.
Unless otherwise ordered by the Court, this case will be
deemed submitted on the day following the date
Petitioner's opposition to a motion to dismiss and/or his
traverse is due.
Every document delivered to the Court must include a
certificate of service attesting that a copy of such document
was served on opposing counsel (or on the opposing party, if
such party is not represented by counsel). Any document
delivered to the Court without a certificate of service will
be returned to the submitting party and will be disregarded
by the Court.
Petitioner must immediately notify the Court and counsel for
Respondent of any change of Petitioner's address. If
Petitioner fails to keep the Court informed of where
Petitioner may be contacted, this action will be subject to
dismissal for failure to prosecute.