(HC) Peterson v. Diaz ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD ANTHONY PETERSON, No. 2:19-cv-01480 WBS GGH P 12 Petitioner, 13 v. ORDER AND AMENDED FINDINGS AND RECOMMENDATIONS 14 RALPH M. DIAZ, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. §2254. The matter was referred to the United States Magistrate Judge 19 pursuant to 28 U.S.C. §636(b)(1) and Local Rule 302(c). Pending before the court is petitioner’s 20 motion for summary judgment. ECF No. 10. 21 The Federal Rules of Civil Procedure may be applied to habeas proceedings, “to the extent 22 that they are not inconsistent with any statutory provisions or these rules[.]” 28 U.S.C. § 2254, 23 Rule 12. Petitioner has filed a motion for summary judgment, in actuality a motion for entry of 24 default, because petitioner believes respondent violated this court’s order on the filing of a motion 25 or answer by filing an untimely motion. The motion [for default] is not well taken. 26 Petitioner filed his federal habeas petition on July 30, 2019. ECF No. 1. The court directed 27 respondent to file a response within 60 days from the date of its September 10, 2019 order. ECF 28 No. 5. On November 12, 2019, respondent filed a motion to dismiss. ECF No. 9. On November 1 14, 2019, petitioner filed a motion for summary judgment requesting that the court grant 2 summary judgment on the pleadings [entry of default] due to respondent’s failure to timely file a 3 response to the habeas petition. ECF No. 10. 4 Respondent has filed a motion to dismiss in accordance with the court’s order as 5 November 11th was a federal holiday, thereby making a filing on November 12th timely. 6 Accordingly, the court will address the merits of the motion to dismiss upon completion of the 7 parties’ briefing on the motion. 8 On the court’s own motion, petitioner will be provided an additional thirty days from the 9 date of this order to file a response to respondent’s motion to dismiss in the form of an opposition 10 or statement of non-opposition. Respondent’s reply, if any, shall be filed and served within 11 fourteen days thereafter. See ECF No. 5. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. The December 2, 2019 Findings and Recommendations (ECF No. 14) are withdrawn 14 based on respondent’s objections; and 15 2. The parties shall brief the merits of the motion to dismiss as set forth above; 16 IT IS FURTHER HEREBY RECOMMENDED that the motion for summary judgment 17 (ECF No. 10) be denied. 18 These findings and recommendations are submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 20 after being served with these findings and recommendations, any party may file written 21 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 22 Findings and Recommendations.” Any response to the objections shall be filed and served within 23 fourteen days after service of the objections. The parties are advised that failure to file objections 24 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 25 Ylst, 951 F.2d 1153 (9th Cir. 1991). 26 Dated: January 13, 2020 /s/ Gregory G. Hollows 27 UNITED STATES MAGISTRATE JUDGE 28