(HC) Valencia Pineda v. Allison

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

LUIS ALBERTO VALENCIA PINEDA,1 Case No. 1:19-cv-00260-DAD-EPG-HC

Petitioner, ORDER VACATING JUNE 6, 2019 FINDINGS AND RECOMMENDATION v. (ECF No. 13)

KATHLEEN ALLISON, ORDER DIRECTING PETITIONER TO FILE RESPONSE TO RESPONDENT’S Respondent. REPLY TO OBJECTIONS (ECF No. 19)

ORDER DIRECTING CLERK OF COURT TO AMEND CAPTION AND SEND PETITIONER A COPY OF RESPONDENT’S REPLY TO OBJECTIONS Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 6, 2019, the undersigned issued findings and recommendation recommending that Respondent’s motion to dismiss be granted and the petition be dismissed as untimely. (ECF No. 13). On November 22, 2019, Petitioner filed objections to the findings and recommendation, arguing that he is entitled to equitable tolling. (ECF No. 18). On December 2, 2019, Respondent filed a reply to the objections. (ECF No. 19). The statutory limitation period is subject to equitable tolling if a petitioner demonstrates “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary

1 When commencing this action, Petitioner listed his name as Luis Alberto Valencia. (ECF No. 1 at 1). Throughout this proceeding, various court documents have been returned as undeliverable because Petitioner’s name and CDC# circumstance stood in his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The petitioner bears the “heavy burden” of showing that he is entitled to equitable tolling. Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (per curiam). Accordingly, the Court HEREBY ORDERS: 1. The findings and recommendation issued on June 6, 2019 (ECF No. 13) is VACATED; 2. Within thirty (30) days of the date of service of this order, Respondent shall file a response to Respondent’s reply to the objections; 3. The Clerk of Court is DIRECTED to amend the caption to reflect Luis Alberto Valencia Pineda as Petitioner; and 4. The Clerk of Court is DIRECTED to send a copy of Respondent’s reply to the objections (ECF No. 19) to Petitioner. Dated: _ December 3, 2019 [sf ey UNITED STATES MAGISTRATE JUDGE