United States District Court, S.D. California
(1) NOTICE OF OPPORTUNITY TO CONSENT TO MAGISTRATE
JUDGE JURISDICTION (28 U.S.C. § 636(c), F.R.C.P. 73),
(2) ORDER REQUIRING RESPONSE TO PETITION (28 U.S.C.
§ 2254, Rule 4)
William V. Gallo United States Magistrate Judge
a state prisoner proceeding pro se, has filed a
Petition for 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 April 23, 2018.
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 June 11,
2018. The motion to dismiss must not address
the merits of Petitioner's claims, but rather must be
confined to the basis for Respondent's contention that
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
Respondent files a motion to dismiss, Petitioner must file
his opposition, if any, to the motion no later than
July 11, 2018. 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
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 pursuant to Rule 5 of the Rules Governing §
2254 Cases no later than June 11,
2018. 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
Petitioner may file a traverse to matters raised in the
answer no later than July 11, 2018.
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
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
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, ...