Opinion
Case No. CIV S-06-1311 VAP.
November 17, 2009
[Motion filed on October 9, 2007] ORDER GRANTING LEAVE TO FILE UNTIMELY TRAVERSE
Petitioner is a state prisoner proceeding pro se in a habeas corpus action pursuant to 28 U.S.C. § 2254. The petition was filed on June 29, 2006. On January 5, 2009, the action was transferred to this Court pursuant to an Order of Designation of Judge to Serve in Another District Within the Ninth Circuit.
On October 9, 2007, Petitioner filed a motion seeking (1) the appointment of counsel and (2) leave to file an untimely traverse. Respondent filed no opposition. On October 12, 2007, Magistrate Judge Brennan issued an order denying the appointment of counsel, but not addressing Petitioner's request to file an untimely traverse. The Court thus addresses this request now.
Petitioner claims he was never properly served with a copy of Respondent's answer to his petition, and was thus unable to file a timely traverse. Petitioner's prison legal mail record supports this assertion. (Mot. at Ex. 2.) In addition, no duly executed proof of service was ever filed by Respondent.
The Declaration of Service by U.S. Mail attached to Respondent's Answer is not only unsigned, but fails to include the name of a declarant. Compare Answer (Dkt. No. 14) at p. 45 (blank declaration of service) with Resp.'s Not. of Filing (Dkt. No. 15) at p. 3 (declaration of service electronically signed by Catherine Tennant).
The Court finds that Petitioner has established good cause for his failure to file a timely traverse, and thus GRANTS him 30 days from the date of this Order to file a traverse.