United States District Court, S.D. California
MICHAEL D. KANE, Petitioner,
JOSIE GASTELO, Warden, Respondent.
ORDER REOPENING CASE AND SETTING BRIEFING
Mitchell D. Dembin United States Magistrate Judge
19, 2019, Petitioner, proceeding pro se, submitted a Petition
for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
(ECF No. 1). The Court dismissed this case without prejudice
because Petitioner failed to satisfy the filing fee
requirement. Petitioner was instructed that to have this case
reopened he had to either pay the $5.00 filing fee or to
submit adequate proof of his inability to pay the fee no
later than September 30, 2019. (ECF No. 2).
September 19, 2019, Petitioner filed a motion to proceed in
forma pauperis which the Court granted on September 24. 2019.
(ECF Nos. 3, 4.) Based on this Court’s review of the
Petition, the Court ORDERS that this case be
in accordance with Rule 4 of the rules governing petitions
for a writ of habeas corpus and upon a preliminary review of
the Petition, IT IS ORDERED that:
Clerk of this Court shall 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 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
shall file a motion to dismiss pursuant to Rule 4 of the
Rules Governing § 2254 Cases no later than December
2, 2019. The motion to dismiss shall not address the
merits of Petitioner’s claims, but rather shall 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 shall 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 shall file
his opposition, if any, to the motion no later than
January 2, 2020. At the time the opposition is
filed, Petitioner shall 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 shall 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 merits.
Respondent does not contend that the Petition can be decided
without the Court reaching the merits of Petitioner’s
claims, Respondent shall file and serve an answer to the
Petition, as well as points and authorities in support of
such answer, no later than December 2, 2019. At the
time the answer is filed, Respondent shall lodge with the
Court all records bearing on the merits of Petitioner’s
claims. The lodgments shall be accompanied by a notice of
lodgment which shall be captioned “Notice of Lodgment
in 28 U.S.C. § 2254 Habeas Corpus Case – To Be
Sent to Clerk’s Office.” Respondent shall not
combine separate pleadings, orders or other items into a
combined lodgment entry. Each item shall be numbered
separately and sequentially.
Petitioner may file a traverse to matters raised in the
answer no later than January 2, 2020. Any traverse
by Petitioner (a) shall state whether Petitioner admits or
denies each allegation of fact contained in the answer; (b)
shall be limited to facts or arguments responsive to matters
raised in the answer; and (c) shall 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 shall 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 should 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 shall be accompanied by a declaration
under penalty of perjury explaining why an extension of time
Unless otherwise ordered by the Court, this case shall 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 disregarded by the
Petitioner shall 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, ...