Opinion
No. C 07-03160 SBA (PR).
September 5, 2008
ORDER GRANTING RESPONDENT'S REQUEST TO WITHDRAW MOTION TO DISMISS; TERMINATING MOTION TO DISMISS; AND SETTING BRIEFING SCHEDULE
(Docket no. 9)
Petitioner filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254. Respondent filed a motion to dismiss the habeas corpus petition as unexhausted (docket no. 9). Petitioner filed an opposition to the motion to dismiss.
Respondent now seeks to withdraw his motion to dismiss in view of evidence that Petitioner has exhausted his state court remedies as to the claims in his petition (docket no. 11). Respondent also requests an opportunity to file another motion to dismiss. Petitioner has filed a response to the reply indicating that he objects to Respondent's request for leave to file another motion to dismiss.
Respondent's request to withdraw his motion to dismiss is GRANTED. Accordingly, the motion to dismiss (docket no. 9) is hereby WITHDRAWN and TERMINATED. The Court now sets a new schedule below for the parties to file their briefs pursuant to the September 4, 2007 Order to Show Cause. The Court also GRANTS Respondent leave to file another motion to dismiss on procedural grounds other than exhaustion, in lieu of an Answer.
The Court orders the following briefing schedule:
1. Respondent shall file with this Court and serve upon Petitioner, within sixty (60) days of the issuance of this Order, an Answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued. Respondent shall file with the Answer a copy of all portions of the relevant state records that have been transcribed previously and that are relevant to a determination of the issues presented by the petition.
2. If Petitioner wishes to respond to the Answer, he shall do so by filing a Traverse with the Court and serving it on Respondent within thirty (30) days of his receipt of the Answer. Should Petitioner fail to do so, the petition will be deemed submitted and ready for decision thirty (30) days after the date Petitioner is served with Respondent's Answer.
3. Respondent has also been granted leave to file a motion to dismiss on procedural grounds other than exhaustion, in lieu of an Answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If Respondent files such a motion, Petitioner shall file with the Court and serve on Respondent an opposition or statement of non-opposition to the motion within thirty (30) days of receipt of the motion, and Respondent shall file with the Court and serve on Petitioner a reply within fifteen (15) days of receipt of any opposition.
4. It is Petitioner's responsibility to prosecute this case. Petitioner must keep the Court and Respondent informed of any change of address and must comply with the Court's orders in a timely fashion. Petitioner must also serve on Respondent's counsel all communications with the Court by mailing a true copy of the document to Respondent's counsel.
5. Extensions of time are not favored, though reasonable extensions will be granted. Any motion for an extension of time must be filed no later than ten (10) days prior to the deadline sought to be extended.
6. This Order terminates Docket no. 9.
IT IS SO ORDERED.