(HC) Marquez v. Rawers Doc.

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Case 1:03-cv-06508-OWW-WMW Document 37 Filed 06/14/2007 Page 1 of 3

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8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 MARIO MARQUEZ, CASE 1:03-CV-6508 OWW WMW HC
12 Petitioner, ORDER REQUIRING RESPONDENT TO
SUBMIT ANSWER
13 vs.
ORDER SETTING BRIEFING SCHEDULE
14 SCOTT P. RAWERS, Warden,
ORDER DIRECTING CLERK OF COURT
15 Respondent. TO SERVE DOCUMENTS
16 ANSWER OR MOTION TO DISMISS DUE IN
THIRTY DAYS
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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant
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to 28 U.S.C. § 2254.
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While this case was on appeal, the parties stipulated to have the judgment reversed and to have
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the case remanded to this court in light of Sass v. California Board of Prison Terms, 461 F.3d 1123 (9th
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Cir. 2006). Accordingly, the Court HEREBY ORDERS:
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1. Respondent SHALL FILE an ANSWER addressing the merits of the Petition within
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THIRTY (30) days of the date of service of this order. Rule 4, Rules Governing Section
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2254 Cases; Cluchette v. Rushen, 770 F.2d 1469, 1473-1474 (9th Cir. 1985) (court has
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discretion to fix time for filing an Answer.). Respondent shall specifically address the
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application of Sass to this case.
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Case 1:03-cv-06508-OWW-WMW Document 37 Filed 06/14/2007 Page 2 of 3

1 2. Respondent SHALL INCLUDE with the Answer any and all transcripts or other
2 documents necessary for the resolution of the issues presented in the Petition. Rule 5 of
3 the Rules Governing Section 2254 Cases.
4 3. Any argument by Respondent that Petitioner has procedurally defaulted a claim(s)
5 SHALL BE MADE in an ANSWER that also addresses the merits of the claims asserted.
6 This is to enable the Court to determine whether Petitioner meets an exception to
7 procedural default. See, Paradis v. Arave, 130 F.3d 385, 396 (9th Cir. 1997) (Procedurally
8 defaulted claims may be reviewed on the merits to serve the ends of justice); Jones v.
9 Delo, 56 F.3d 878 (8th Cir. 1995) (the answer to the question that it is more likely than
10 not that no reasonable juror fairly considering all the evidence, including the new
11 evidence, would have found Petitioner guilty beyond a reasonable doubt necessarily
12 requires a review of the merits).
13 4. Petitioner’s TRAVERSE, if any, is due THIRTY (30) days from the date Respondent’s
14 Answer is filed with the Court.
15 5. Respondent is AUTHORIZED to submit a MOTION TO DISMISS in lieu of an Answer,
16 within THIRTY (30) days of the date of service of this order on the following grounds:1
17 (a) EXHAUSTION - 28 U.S.C. § 2254(b)(1). A Motion to Dismiss for Petitioner’s
18 failure to exhaust state court remedies SHALL INCLUDE copies of all the
19 Petitioner’s state court filings and dispositive rulings so as to allow the Court to
20 examine the limitations issue;
21 (b) STATUTE OF LIMITATIONS - 28 U.S.C. § 2244(d)(1). A Motion to Dismiss
22 the Petition as filed beyond the one year limitations period SHALL INCLUDE
23 copies of all Petitioner’s state court filings and dispositive rulings.
24 (c) SECOND OR SUCCESSIVE Petitions - 28 U.S.C. § 2244(b). A Motion to
25 Dismiss the Petition on the basis of § 2244(b) SHALL include a copy of the
26 previously filed federal Petition and disposition thereof.
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Pursuant to Rule 16 of the Federal Rules of Civil Procedure, the parties must seek leave of court before submitting
28 any pleading not contemplated by this Order. Fed.R.Civ.P. 16(e).

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1 (d) OPPOSITIONS to Motions to Dismiss SHALL be served and filed within

2 EIGHTEEN (18) days, plus three days for mailing. All other Oppositions
3 SHALL be served and filed within EIGHT (8) days, plus three days for mailing.
4 REPLIES to Oppositions to Motions to Dismiss SHALL be served and filed
5 within eight (8) days, plus three days for mailing. Replies to Oppositions to all
6 other Motions SHALL be served and filed within eight (8) days, plus three days
7 for mailing. If no opposition is filed, all motions are deemed submitted at the
8 expiration of the opposition period.
9 6. Unless already submitted, both Respondent and Petitioner SHALL COMPLETE and
10 RETURN to the Court along with the Response or Motion to Dismiss, a Consent form
11 indicating whether the party consents or declines to consent to the jurisdiction of a the
12 United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c)(1).
13 7. The Clerk of the Court is DIRECTED to SERVE a copy of this order along with a copy
14 of the PETITION and any exhibits/attachments, on the Attorney General or his
15 representative.
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IT IS SO ORDERED.
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Dated: June 14, 2007 /s/ William M. Wunderlich
22 bl0dc4 UNITED STATES MAGISTRATE JUDGE
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