Opinion
No. CIV S-06-2223 MCE GGH P.
February 26, 2007
ORDER
A joint scheduling statement in this matter was filed on February 16, 2007, pursuant to the court's order filed December 18, 2006. After reviewing the joint statement, the court issues the following ORDERS:
An extension of time for filing the statement was granted by order filed on January 23, 2007.
1. Should respondent elect to file a motion to dismiss on the ground that petitioner's petition is time-barred under AEDPA, on the ground that petitioner has failed to exhaust state court remedies and/or on the ground that the petition is procedurally barred, respondent must do so within thirty days of the filed date of this order; petitioner must file any opposition within sixty days of service of the motion; respondent will then have fifteen days to file any reply;
2. Should the petition survive any motion to dismiss by respondent, petitioner must, within thirty days, of any order denying respondent's dismissal motion either:
a) file an amended petition of exhausted claims only on which he elects to proceed, along with any memorandum of points and authorities; if such an amended petition is filed and served, respondent must file an answer or dispositive motion within thirty days thereafter; petitioner must file any reply or opposition, as appropriate, within thirty days of service of respondent's responsive pleading; if respondent filed a motion, respondent will have fifteen days after service of an opposition to file a reply; OR
b) file an amended petition, setting forth all claims, exhausted and unexhausted, and shall demonstrate good cause for having failed to exhaust state court remedies as to any claim which petitioner would seek to exhaust. Petitioner shall move the court to hold the proceedings in abeyance pending exhaustion of state court remedies as to the unexhausted claims, within the same thirty day-period; if a stay is ultimately granted, petitioner must immediately pursue state court exhaustion, that is, within thirty days of the granting of a stay, and, upon said exhaustion in state court, within thirty days, proceed upon the amended petition in federal court.
3. Should respondent object to any motion for a stay of proceedings by petitioner to pursue unexhausted claims, respondent must file any opposition to such a motion within thirty days of service thereof; thereafter, petitioner has fifteen days to file any reply.
4. If petitioner intends to make a motion for leave to conduct discovery under the Rules Governing Section 2254 Cases, Rule 6(a), petitioner must do so prior to the deadline for his initial filing; if respondent opposes any such motion respondent must do so within thirty days thereafter; petitioner's reply, if any, must be filed within fifteen days of any opposition by respondent; should petitioner elect to seek discovery;
5. If petitioner chooses to move for an evidentiary hearing, petitioner must do so at the earliest appropriate opportunity; respondent must file any opposition within thirty days of service of any such motion, and petitioner must file any reply within fifteen days of service of any opposition.