Deleon v. Phillips ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ALEJANDRO A. DELEON, Case No. 23-cv-01862-DMR (PR) Petitioner, 8 ORDER TO SHOW CAUSE v. 9 10 BRYAN D. PHILLIPS, Acting Warden, Respondent. 11 12 Petitioner, a state prisoner, has filed this pro se habeas petition filed pursuant to 28 U.S.C. 13 § 2254. Dkt. 1. Petitioner has paid the full filing fee. Dkt. 4. This action has been assigned to the 14 undersigned Magistrate Judge. 15 Pursuant to 28 U.S.C. § 636(c), with written consent of all parties, a magistrate judge may 16 conduct all proceedings in a case, including entry of judgment. Appeal will be directly to the 17 United States Court of Appeals for the Ninth Circuit. See 28 U.S.C. § 636(c)(3). 18 On April 17, 2023, Petitioner consented to magistrate judge jurisdiction in this matter. 19 Dkt. 3. 20 It does not appear from the face of the petition that it is without merit. Good cause 21 appearing, the court hereby issues the following orders: 22 1. The Clerk of the Court shall serve electronically a Magistrate Judge jurisdiction 23 consent form, a copy of this order upon Respondent and Respondent’s attorney, the Attorney 24 General of the State of California, at the following email address: SFAWTParalegals@doj.ca.gov. 25 The petition and the exhibits thereto are available via the Electronic Case Filing System for the 26 Northern District of California. The Clerk shall serve by mail a copy of this order on Petitioner. 27 2. Within twenty-eight (28) days of the issuance of this Order, Respondent shall 1 consents or declines to proceed before the assigned Magistrate Judge. Respondent is free to 2 withhold consent without adverse consequences. If Respondent consents to a Magistrate Judge’s 3 jurisdiction, this case will be handled by the undersigned Magistrate Judge. If Respondent 4 declines, the case will be reassigned to a District Judge. Whether Respondent consents or declines 5 to proceed before the assigned Magistrate Judge, the parties shall abide by the briefing schedule 6 below. 7 3. Respondent shall file with the court and serve on Petitioner, within sixty (60) days 8 of the date this Order is filed, an answer to this petition, showing cause why a writ of habeas 9 corpus should not be granted based on Petitioner’s cognizable claims. Respondent shall file with 10 the answer and serve on Petitioner a copy of all exhibits that are relevant to a determination of the 11 issues presented by the petition. 12 4. If Petitioner wishes to respond to the Answer, Petitioner shall do so by filing a 13 Traverse with the court and serving it on Respondent within twenty-eight (28) days of 14 Petitioner’s receipt of the Answer. Should Petitioner fail to do so, the petition will be deemed 15 submitted and ready for decision twenty-eight (28) days after the date Petitioner is served with 16 Respondent’s Answer. 17 5. Respondent may file with this court and serve upon Petitioner, within sixty (60) 18 days of the issuance of this Order, a motion to dismiss on procedural grounds in lieu of an 19 Answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 20 2254 Cases. If Respondent files a motion to dismiss, Petitioner shall file with the court and serve 21 on Respondent an opposition or statement of non-opposition to the motion within twenty-eight 22 (28) days of receipt of the motion, and Respondent shall file with the court and serve on Petitioner 23 a reply within fourteen (14) days of receipt of any opposition. 24 6. It is Petitioner’s responsibility to prosecute this case. Petitioner must keep the 25 court and Respondent informed of any change of address and must comply with the court’s orders 26 in a timely fashion. Pursuant to Northern District Local Rule 3-11 a party proceeding pro se 27 whose address changes while an action is pending must promptly file a notice of change of 1 without prejudice when: (1) mail directed to the pro se party by the court has been returned to the 2 court as not deliverable, and (2) the court fails to receive within sixty days of this return a written 3 communication from the pro se party indicating a current address. See L.R. 3-11(b); see also 4 Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). 5 Petitioner must also serve on Respondent’s counsel all communications with the court by mailing 6 a true copy of the document to Respondent’s counsel. 7 7. Upon a showing of good cause, requests for a reasonable extension of time will be 8 granted provided they are filed on or before the deadline they seek to extend. 9 IT IS SO ORDERED. 10 Dated: June 27, 2023 11 12 DONNA M. RYU 13 Chief Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27