(HC) Frank v. Warden, USP Atwater ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JIMMY LEE FRANK, Case No. 1:21-cv-00568-HBK 12 Petitioner, ORDER STRIKING PETITIONER’S UNAUTHORIZED PLEADING FROM THE 13 v. RECORD 14 WARDEN, USP ATWATER, (Doc. No. 37) 15 Respondent. ORDER GRANTING PETITIONER’S MOTION FOR REVIEW OF PETITION 16 (Doc. No. 38) 17 18 Petitioner Jimmy Lee Frank (“Petitioner” or “Frank”), a federal prisoner proceeding pro 19 se, has pending a petition for writ of habeas corpus under 28 U.S.C. § 2241. (Doc. No. 1). 20 Before the Court is Petitioner’s “Motion – Change of Law 65% to 75%.” (Doc. No. 37) and 21 Petitioner’s “Motion – Pertaining Respondent Deadline” (Doc. No. 38). 22 A. Motion – Change of Law 65% to 75% 23 The Rules Governing Section 2254 Cases in the United States District Courts provide for 24 the filing of a habeas petition (Rule 2), an answer, and a reply (Rule 5). Additional briefing may 25 be permitted upon a court order to expand the record (Rule 7). In this case, Petitioner submitted a 26 response to Respondent’s motion to dismiss, and was also permitted to submit a supplemental 27 response. (Doc. Nos. 28, 32, 35). To the extent discernable, Petitioner’s “Motion – Change of 28 Law 65% to 75%” is restating the same request for relief made in his petition, and the same 1 | arguments made in his response to Respondent’s motion to dismiss. (Doc. Nos. 1, 28, 37). The 2 | Court has not ordered Petitioner to submit any additional briefing. Therefore, the Court will order 3 | Petitioner’s unauthorized pleading stricken from the record. Petitioner is advised to refrain from 4 | submitting additional pleadings without leave of court. 5 B. Motion — Pertaining Respondent Deadline 6 Petitioner appears to argue that Respondent has “missed” deadlines, and Petitioner is 7 | “expecting and waiting on the Judge ruling of both party’s claims.” (Doc. No. 38). However, the 8 | Court’s review of the record indicates that Respondent filed a motion to dismiss and filed a reply, 9 | as permitted by the Court to Petitioner’s supplemental response, within the prescribed 10 | timeframes. Further, the Court has the discretion to manage its own docket. Ferdik v. Bonzelet, 11 | 963 F.2d 1258, 1261 (9th Cir. 1992). While the Court endeavors to handle all matters as 12 || expeditiously as possible, this Court has “long labored under one of the heaviest caseloads in the 13 || nation.” See Standing Order in Light of Ongoing Judicial Emergency in Eastern District of 14 | California. The Court notes this matter is fully briefed and will issue an opinion in due course. 15 || Petitioner may consider his motion for review granted to the extent that the Court will consider 16 | and review this matter as quickly as its caseload permits. 17 Accordingly, it is ORDERED: 18 1. Petitioner’s unauthorized pleading (Doc. No. 37) is STRICKEN from the record. 19 2. The clerk of court is directed to STRIKE the pleading (Doc. No. 32) from the record. 20 3. Petitioner’s Motion Pertaining to Respondent Deadline (Doc. No. 38) is GRANTED. 21 | Dated: _ January 26, 2022 Mihaw. Wh. foareh fackte 23 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 25 26 27 28