Olivo v. Yates

Full title: ABEL OLIVO, Petitioner, v. JAMES YATES, et al., Respondents

Court: United States District Court, E.D. California

Date published: Aug 23, 2007

No. CIV S-07-0438-RRB-CMK-P (E.D. Cal. Aug. 23, 2007)

Opinion

No. CIV S-07-0438-RRB-CMK-P.

August 23, 2007

ORDER

CRAIG KELLISON, Magistrate Judge

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondents' motion to dismiss (Doc. 10) filed May 8, 2007. Petitioner filed an opposition to the motion (Doc. 12) on May 31, 2007. Respondents did not file a reply.

Respondents' motion to dismiss is based on the grounds that petitioner failed to file his habeas action within the one-year statute of limitations contained in 28 U.S.C. § 2244(d)(1) and (2). Petitioner argues he should be entitled to equitable tolling of the statute of limitations due to his transfer from one prison to another without his legal documents, and the failure of his appellate counsel to provide him copies of his legal records. In addition, petitioner argues that time should be extended based on the mailbox rule, so that the date he filed his cases with both the state and federal court were "filed" as of the dates he sent the documents.

As respondents have not filed a reply brief, they have not addressed petitioner's equitable tolling arguments. The court is requesting additional briefing from the parties on the following issues:

1. What showing is required of petitioner, in raising equitable tolling, to show he was diligent in pursuing his rights and has the showing been made in this case; and

2 What showing is required by petitioner to prove the timeliness of his filings pursuant to the mailbox rule and has the showing been made in this case.

Respondents shall file a response addressing the above-mentioned issues within 30 days of the date of this order. Petitioner will then have 30 days to file a surreply. The parties will limit their responses to the issues relating to equitable tolling as outlined above.

Accordingly, IT IS HEREBY ORDERED that

1. Respondents shall file a response addressing the issues outlined above within 30 days of the date of this order; and

2. Petitioner will have 30 days from the date of service of respondents' brief to file a surreply addressing the issues raised in respondents' response.