(HC)Nieto v. Cisneros ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDDIE NIETO, Case No. 1:21-cv-01582-HBK 12 Petitioner, ORDER REQUIRING RESPONSE TO PETITION FOR WRIT OF HABEAS 13 v. CORPUS, SETTING BRIEFING SCHEDULE, AND DIRECTING SERVICE OF 14 THERESA CISNEROS, DOCUMENTS 15 Respondent. (Doc. No. 1) 16 17 Before the court is petitioner Eddie Nieto’s operative petition for writ of habeas corpus 18 under 28 U.S.C. § 2254 transferred into this court on October 27, 2021. (Doc. No. 1). The Court 19 has conducted a preliminary review of the petition. See R. Governing § 2254 Cases 4; 28 U.S.C. 20 § 2243. Under Rule 4, a district court must dismiss a habeas petition if it “plainly appears” that 21 the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 22 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). It is not clear from the face of 23 the petition whether Petitioner is entitled to relief. 28 U.S.C. § 2243. 24 Accordingly, it is hereby ORDERED: 25 1. No later than sixty (60) days from the date of entry of this Order, Respondent is 26 DIRECTED to respond to each ground and argument raised in the petition and show 27 cause why the petition should not be granted. A response may be one of the following: 28 (A) An answer addressing the merits of the petition. This response, which may not 1 exceed fifty (50) pages in length without the court’s leave, 2 i. must set forth the facts and procedural history of the case and address each 3 ground, allegation, and argument raised in the petition. Conclusory 4 statements and summary arguments that petitioner is not entitled to 5 relief under § 2254 are not acceptable responses. 6 ii. in addressing the merits of each ground, respondent must identify: 7 a. where each ground was raised in the state court record; 8 b. the reason(s) the state court denied the ground; 9 c. the legal citations that the state court relied on in denying the ground; 10 and 11 d. a pinpoint citation to the state court record and a copy of the state court 12 opinion(s) addressing the ground. 13 (B) A motion to dismiss the petition. This limited response must include only 14 portions of the state record necessary for the court to decide the bar to a merits 15 review. 16 2. Respondent is DIRECTED to electronically file all transcripts and other 17 documents necessary for resolving the issues presented in the petition. See R. 18 Governing Section 2254 Cases 5(c). 19 (A) The record must include – as separate exhibits – all relevant portions 20 of the state court proceedings including, but not limited to: 21 i. any brief submitted by petitioner or prosecution in trial and 22 appellate courts relating to the conviction or sentence; 23 ii. the opinions and dispositive orders of the trial and appellate 24 courts relating to the conviction or sentence; and 25 iii. transcripts of pre-trial, trial, sentencing, and post-conviction 26 proceedings as appropriate. 27 (B) The record must include an electronically bookmarked index with 28 sufficiently detailed bookmarks that identify the title of each exhibit 1 and the page location within the record as filed in CM/ECF. Failure 2 to do so may result in the court directing respondent to refile the 3 state court record. 4 (C) The record must be arranged so each post-conviction motion, 5 response, and state court order addressing the motion is a separate 6 exhibit. 7 3. If Respondent files an answer to the petition, Petitioner may file a reply within 8 thirty (30) days of the date of service of Respondent’s answer. The reply 9 must not exceed twenty (20) pages without the court’s leave. If no reply is 10 filed within thirty (30) days, the petition and answer are deemed submitted. 11 The court will not address new grounds raised in the reply. See United States 12 v. Cox 7 F.3d 1458, 1463 (9th Cir. 1993). 13 4. If Respondent moves to dismiss, Petitioner must file an opposition or 14 statement of non-opposition within twenty-one (21) days of the date of 15 service of Respondent’s motion. Any reply to an opposition to the motion to 16 dismiss must be filed within seven (7) days after the opposition is served. 17 5. Unless already submitted, both Respondent and Petitioner must complete and 18 return to the court within thirty (30) days a consent/decline form indicating 19 whether the party consents to the jurisdiction of a United States Magistrate 20 Judge under 28 U.S.C. § 636(c)(1). 21 6. The Clerk of Court is directed to send an electronic copy of this order to the 22 Attorney General of the State of California, and to mail a copy of this order to 23 Petitioner. 24 7. All motions shall be submitted on the record and briefs filed without oral 25 argument unless otherwise ordered by the court. 26 8. Extensions of time will be granted only upon a showing of good cause. 27 28 DONE AND ORDERED 1 5 | Dated: __January 20, 2022 ooo. WN fereh fackt HELENA M. BARCH-KUCHTA 3 UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28