(HC) Austin v. Covello ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EXZAVER DENNIS AUSTIN, No. 2:22-cv-01033-WBS-EFB (HC) 12 Petitioner, 13 v. ORDER RE SUPPLEMENTAL BRIEFING 14 PATRICK COVELLO, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding without counsel with a petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. On August 15, 2022, respondent filed a 19 motion to dismiss the petition as untimely. ECF No. 13. On November 2, 2022, petitioner filed 20 an opposition (titled “Reply”) to respondent’s motion. ECF No. 21. Respondent did not file a 21 reply. 22 Petitioner maintains in his opposition that he is entitled to equitable tolling based on two 23 grounds. ECF No. 21. First, petitioner maintains that, pursuant to Bills v. Clark, 628 F.3d 1092, 24 1099-1101 (9th Cir. 2010), he is entitled to equitable tolling based on his alleged mental 25 impairment. ECF No. 21 at pp. 2-3. Second, petitioner maintains that, pursuant to Schlup v. 26 Delo, 513 U.S. 298, 332 (1995), he is entitled to equitable tolling based on his alleged actual 27 innocence. ECF No. 21 at pp 3-5. While respondent addressed petitioner’s argument for 28 ///// 1 | equitable tolling based on actual innocence in his initial motion to dismiss, respondent did not 2 || address petitioner’s argument for equitable tolling based on mental impairment. ECF No. 13. 3 Accordingly, the court hereby orders respondent to file a reply to ECF No. 21 within 30 4 || days of the date of this order. This reply should be focused on addressing petitioner’s argument 5 || regarding equitable tolling based on mental impairment. Should petitioner wish to file a sur- 6 || reply, he should do so within 21 days from the date of service of respondent’s reply. 7 So ordered. 8 | Dated: December 21, 2022. □□ PDEA 9 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28