Opinion
No. C03-0065R
January 15, 2003
ORDER FOR SERVICE AND RETURN, 28 U.S.C. § 2254 HABEAS CORPUS PETITION
Petitioner is proceeding pro se in this 28 U S.C. § 2254 habeas corpus challenge to a 1991 conviction in King County Superior Court for first degree rape. It is therefore ORDERED:
(1) The Clerk shall arrange for service by certified mail upon Respondent and upon the Attorney General of the State of Washington, of copies of the Petition and the attachments thereto, and of this Order. The Clerk shall also direct a copy of this Order and of the General Order to Petitioner.
(2) Within forty-five (45) days after such service, Respondent shall file and serve an Answer in accordance with Rule 5 of the Rules Governing Section 2254 Cases in United States District Courts. As part of such Answer, Respondent should state whether Petitioner has exhausted available state remedies, whether an evidentiary hearing is necessary, and whether there is any issue of abuse or delay under Rule 9. Respondent shall not file a dispositive motion in place of an Answer without first showing cause as to why an Answer is inadequate. Respondent shall file the Answer with the Clerk of the Court and serve a copy of the Answer upon Petitioner.
(3) The Answer will be treated in accordance with Local Rule CR 7. Accordingly, on the face of the Answer, the Respondent shall note It for consideration the fourth Friday after it is tiled, and the Clerk shall note the Answer accordingly. Petitioner may file and serve a response not later than on the Monday immediately preceding the Friday appointed for consideration of the matter, and Respondent may file and serve a reply brief not later than on the Thursday immediately preceding the Friday designated for consideration of the matter.
(4) The Clerk is directed to send a copy of this Order to Petitioner and to the Honorable Barbara J. Rothstein.
ATTACHMENT UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
IN RE
SUMMARY OF PROCEDURAL RULES
(for distribution in cases where plaintiff/petitioner GENERAL ORDER is proceeding pro se)
The following paragraphs summarize certain local rules of the Court and other procedural matters. It is 2.5 intended if or the benefit of plaintiff/petitioners proceeding pro se.
It is hereby ORDERED that:
(1) The summons and complaint-must be served on each defendant/respondent within four months after the filing of the complaint. If service has not been made in that time, and good cause is not shown for that failure, the action can be dismissed without prejudice.
(2) All pleadings submitted for consideration by the Court must be filed on short paper (8 1/2 by 11 inches) Pleadings submitted on longer paper will be returned, and will not be filed.
(3) All original documents and papers submited for consideration by the Court in this case, and a duplicate of all such pacers, are to be filed with the Clerk of this Court The originals and copies of all such papers shall indicate in the upper right-hand corner the name of the District Judge or Magistrate Judge to whom the copies are to be delivered. The papers shall be accompanied by proof that such documents have been served upon counsel for the opposing party (or upon any party acting pro se) Service is accomplished by mailing a true and correct copy of the document to each defendant/respondent's counsel. The proof of service shall show the day and manner of service and may be written acknowledgment of service, by certificate of a member of the bar of this Court, or by affidavit of the person who served the papers. if a party fails to comply with this order, the Court will disregard the submitted document.
(4) Any request for court action shall be set forth in a motion, not in a letter or other document. A party must file and serve with the motion a supporting memorandum. The motion shall include in its caption (immediately below the title of the motion) a designation of the Friday upon which the motion is to be noted upon the court's calendar. That date shall be the third Friday following filing of the motion (fourth Friday for motions for preliminary injunction, to dismiss, for summary judgment, and other dispositive motions). All briefs and affidavits in opposition to any motion shall be filed and served not later than 4:30 p.m. on the Monday immediately preceding the Friday appointed for consideration of the motion. if service is by mail, the brief and any supporting materials shall be mailed not later than the Friday preceding the Friday on which the motion is noted. If a party fails to file and serve timely opposition to a motion, the Court may deem any opposition to be without merit. The party making the motion may file, not later than 4.20 p.m on the Thursday immediately preceding the Friday designated for consideration of the motion, a response to the opposing party's briefs and affidavits. The motion and Supporting memorandum, as well as any opposition or response, must be served and filed according to paragraph (3) above.
(5) If defendant/respondent files a motion for summary judgment, plaintiff/petitioner is advised, pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), cert. denied, 119 S.Ct. 2392 (1999), and Federal Rule of Civil Procedure 56, that he or she has a right to file counter affidavits or other responsive evidentiary materials An opposition to defendant/respondent's motion for summary judgment and that his or her failure to file such materials may result in the entry of summary judgment against him or her. If the motion for summary judgment is granted, the plaintiff/petitioner is advised that his/her case will be over. Thus, if plaintiff/petitioner fails to file opposing counter-affidavits or other evidence, defendant/respondent's evidence might be taken as truth, and final, judgment may be entered against plaintiff/petitioner without a trial. See Local Rule CR 7(b)(4).
(6) You are not to communicate directly with the District Judge or the Magistrate Judge with regard to this case. All relevant information and papers are to be directed to the Clerk, with copies sent to opposing counsel.
(7) If you are proceeding pro se (without an attorney), you must notify the Clerk and opposing parties promptly if you change your address. If you fail to do so, your case may be dismissed.
(8) All cases that have been pending in this Court for more than one year without any proceeding of record having been taken may be dismissed by the Court on its Own motion for lack of prosecution.
/s/ _______________________ /s/ _____________________ Hon. John L. Weinberg Hon. J. Kelley Arnold U.S. Magistrate Judge U.S. Magistrate Judge
/s/ ________________________ /s/ _____________________ Hon. Ricardo S. Martinez Hon. Monica J. Benton U.S. Magistrate Judge U.S. Magistrate Judge