(HC) Valencia Pineda v. Allison ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LUIS ALBERTO VALENCIA PINEDA,1 Case No. 1:19-cv-00260-DAD-EPG-HC 12 Petitioner, ORDER VACATING JUNE 6, 2019 FINDINGS AND RECOMMENDATION 13 v. (ECF No. 13) 14 KATHLEEN ALLISON, ORDER DIRECTING PETITIONER TO FILE RESPONSE TO RESPONDENT’S 15 Respondent. REPLY TO OBJECTIONS (ECF No. 19) 16 ORDER DIRECTING CLERK OF COURT TO AMEND CAPTION AND SEND 17 PETITIONER A COPY OF RESPONDENT’S REPLY TO OBJECTIONS 18 19 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 20 pursuant to 28 U.S.C. § 2254. On June 6, 2019, the undersigned issued findings and 21 recommendation recommending that Respondent’s motion to dismiss be granted and the petition 22 be dismissed as untimely. (ECF No. 13). On November 22, 2019, Petitioner filed objections to 23 the findings and recommendation, arguing that he is entitled to equitable tolling. (ECF No. 18). 24 On December 2, 2019, Respondent filed a reply to the objections. (ECF No. 19). 25 The statutory limitation period is subject to equitable tolling if a petitioner demonstrates 26 “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary 27 1 When commencing this action, Petitioner listed his name as Luis Alberto Valencia. (ECF No. 1 at 1). Throughout this proceeding, various court documents have been returned as undeliverable because Petitioner’s name and CDC# 1 | circumstance stood in his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 2 | 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The petitioner bears the 3 | “heavy burden” of showing that he is entitled to equitable tolling. Chaffer v. Prosper, 592 F.3d 4 | 1046, 1048 (9th Cir. 2010) (per curiam). 5 Accordingly, the Court HEREBY ORDERS: 6 1. The findings and recommendation issued on June 6, 2019 (ECF No. 13) is VACATED; 7 2. Within thirty (30) days of the date of service of this order, Respondent shall file a 8 response to Respondent’s reply to the objections; 9 3. The Clerk of Court is DIRECTED to amend the caption to reflect Luis Alberto Valencia 10 Pineda as Petitioner; and 11 4. The Clerk of Court is DIRECTED to send a copy of Respondent’s reply to the objections 12 (ECF No. 19) to Petitioner. 13 4 IT IS SO ORDERED. Dated: _ December 3, 2019 [sf ey 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28