Cummings v. Andrewjeski

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 CLAYTON EVAN CUMMINGS, CASE NO. 2:23-cv-1314-JNW-GJL 11 Petitioner, v. ORDER FOR SERVICE AND 12 RESPONSE TO MOTION TO MELISSA ANDREWJESKI, STAY, § 2254 PETITION 13 Respondent. 14

15 This is a federal habeas action filed under 28 U.S.C. § 2254. Petitioner Clayton Evan 16 Cummings is currently incarcerated at the Coyote Ridge Corrections Center and is subject to 17 the Court’s Prisoner E-Filing Initiative pursuant to General Order 06-16. The Court, having 18 reviewed Petitioner’s federal habeas Petition (Dkt. 6), hereby finds and ORDERS as follows: 19 (1) The Clerk shall arrange for the service, by e-mail upon Respondent1 and upon the 20 Attorney General of the State of Washington, of copies of the following documents: the Petition 21

22 1 The proper respondent to a habeas petition is the “person who has custody over [the petitioner].” 28 U.S.C. § 2242; see also § 2243; Brittingham v. United States, 982 F.2d 378 (9th Cir. 1992); Dunne v. Henman, 875 F.2d 244, 249 (9th Cir. 1989). Petitioner is currently incarcerated at the Coyote Ridge Corrections Center. See Dkt. 6. As such, 23 only the Superintendent of Coyote Ridge Corrections Center, Melissa Andrewjeski, is the proper respondent in this matter. See Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (the person having custody of the person detained for 24 purposes of § 2254 is typically the warden of the facility where the petitioner is incarcerated). 1 (Dkt. 6), Petitioner’s Motion for habeas corpus relief (Dkt. 8), Motion for Stay and Abeyance 2 (Dkt. 9), and this Order. The Clerk shall also direct a copy of this Order and of the Court’s pro 3 se instruction sheet to Petitioner. 4 (2) At this time, Respondent is directed to respond only to Petitioner’s Motion for

5 Stay and Abeyance (Dkt. 9) and Motion for habeas corpus relief (Dkt. 8). The Clerk is directed 6 to note the Motions (Dkts. 8, 9) for October 20, 2023; Respondent shall file a response on or 7 before October 16, 2023, and Petitioner may file a reply on or before October 20, 2023. 8 (3) Within forty-five (45) days after the Court has issued an Order on the Motion to 9 stay (or, if a stay is granted, from the time the stay is lifted), Respondent shall file and serve an 10 answer in accordance with Rule 5 of the Rules Governing Section 2254 Cases in United States 11 District Courts. As part of such answer, Respondent shall state whether Petitioner has exhausted 12 available state remedies and whether an evidentiary hearing is necessary. Respondent shall not 13 file a dispositive motion in place of an answer without first showing cause as to why an answer is 14 inadequate. Respondent shall file the answer with the Clerk of the Court and serve a copy of the

15 answer on Petitioner. 16 (4) The answer will be treated in accordance with LCR 7. Accordingly, on the face of 17 the answer, Respondent shall note it for consideration on the fourth Friday after filing. Petitioner 18 may file and serve a response not later than the Monday immediately preceding the Friday 19 designated for consideration of the matter, and Respondent may file and serve a reply not later 20 than the Friday designated for consideration of the matter. 21 (5) Filing by Parties, Generally 22 All attorneys admitted to practice before this Court are required to file documents 23 electronically via the Court’s CM/ECF system. Petitioner shall file all documents electronically.

24 1 All filings must indicate in the upper right-hand corner the name of the magistrate judge to 2 whom the document is directed. 3 Any document filed with the Court must be accompanied by proof that it has been served 4 upon all parties that have entered a notice of appearance in the underlying matter. Petitioner shall

5 indicate the date the document is submitted for e-filing as the date of service. 6 (6) Motions 7 Any request for court action shall be set forth in a motion, properly filed and served. 8 Pursuant to LCR 7(b), any argument being offered in support of a motion shall be submitted as a 9 part of the motion itself and not in a separate document. The motion shall include in its caption 10 (immediately below the title of the motion) a designation of the date the motion is to be noted for 11 consideration on the Court’s motion calendar. 12 (7) Direct Communications with District Judge or Magistrate Judge 13 No direct communication is to take place with the District Judge or Magistrate Judge with 14 regard to this case. All relevant information and papers are to be directed to the Clerk.

15 Dated this 13th day of September, 2023. 16 A 17 18 Grady J. Leupold United States Magistrate Judge 19 20 21 22 23 24