Morrison v. Lizarraga

Opinion

1 2 3 4 5 6 7 10 11 RYAN MICHAEL MORRISON, Case No.: 18-cv-01857-MMA (JLB)

12 Petitioner, ORDER SETTING BRIEFING 13 v. SCHEDULE 14 WARDEN JOE A. LIZARRAGA, et al., 15 Respondents. 16 17 18 On August 8, 2018, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 19 28 U.S.C. § 2254. (ECF No. 1.) On October 17, 2018, Petitioner filed a motion for stay 20 and abeyance pursuant to Rhines v. Weber, 544 U.S. 269 (2005). (ECF No. 4.) On 21 April 26, 2019, the Honorable Michael M. Anello denied Petitioner’s motion for stay and 22 abeyance without prejudice. (ECF No. 7.) 23 On August 6, 2019, Respondent filed a motion to dismiss the Petition on the grounds 24 that Petitioner had failed to exhaust his state court remedies with respect to all claims in 25 the Petition. (ECF No. 12.) Petitioner filed an opposition in which he renewed his request 26 for a stay and abeyance under Rhines. (ECF No. 17.) On February 5, 2020, Judge Anello 27 denied Respondent’s motion to dismiss and granted Petitioner’s renewed request for a stay 28 and abeyance. (ECF No. 19.) The case was thereafter stayed pending exhaustion of 1 Petitioner’s second claim for ineffective assistance of trial counsel. (Id. at 2.) Petitioner 2 was required to file, within 30 days of a final decision by the California Supreme Court, a 3 motion requesting that the stay be lifted and that leave to file a First Amended Petition 4 pursuant to 28 U.S.C. § 2254 be granted. (Id. at 3.) Petitioner was also required to include 5 a proposed First Amended Petition with that filing. (Id.) 6 According to Petitioner’s March 19, 2021 status report, the California Supreme 7 Court issued its decision denying his habeas corpus petition on February 17, 2021. (See 8 ECF No. 22.) On or about March 22, 2021, Petitioner filed a motion to lift the stay and for 9 leave to file a First Amended Petition. (ECF No. 23.) On March 24, 2021, Judge Anello 10 granted that motion, lifted the stay, and ordered that Petitioner’s First Amended Petition be 11 filed as of March 24, 2021. (ECF No. 24.) 12 Accordingly, in accordance with Rule 4 of the rules governing petitions for a writ of 13 habeas corpus pursuant to 28 U.S.C. § 2254, IT IS ORDERED that: 14 1. If Respondent contends the Petition can be decided without the Court’s 15 reaching the merits of Petitioner’s claims (e.g., because Respondent contends Petitioner 16 has failed to exhaust any state remedies as to any ground for relief alleged in the Petition, 17 or that the Petition is barred by the statute of limitations, or that the Petition is subject to 18 dismissal under Rule 9 of the Rules Governing § 2254 Cases, or that all of the claims are 19 procedurally defaulted, or that Petitioner is not in custody), Respondent shall file a motion 20 to dismiss pursuant to Rule 4 of the Rules Governing § 2254 Cases no later than 21 May 28, 2021. The motion to dismiss shall not address the merits of Petitioner’s claims, 22 but rather shall be confined to the basis for Respondent’s contention that dismissal without 23 reaching the merits of Petitioner’s claims is warranted. At the time the motion to dismiss 24 is filed, Respondent shall lodge with the Court all records bearing on Respondent’s 25 contention in this regard. A hearing date is not required for the motion to dismiss. 26 2. If Respondent files a motion to dismiss, Petitioner shall file his opposition, if 27 any, to the motion no later than June 28, 2021. At the time the opposition is filed, 28 Petitioner shall lodge with the Court any records not lodged by Respondent which 1 Petitioner believes may be relevant to the Court’s determination of the motion. 2 3. Unless the Court orders otherwise, Respondent shall not file a reply to 3 Petitioner’s opposition to a motion to dismiss. If the motion is denied, the Court will afford 4 Respondent adequate time to respond to Petitioner’s claims on the merits. 5 4. If Respondent does not contend that the Petition can be decided without the 6 Court reaching the merits of Petitioner’s claims, Respondent shall file and serve an answer 7 to the Petition pursuant to Rule 5 of the Rules Governing § 2254 Cases no later than 8 May 28, 2021. At the time the answer is filed, Respondent shall lodge with the Court all 9 records bearing on the merits of Petitioner’s claims. The lodgments shall be accompanied 10 by a notice of lodgment which shall be captioned “Notice of Lodgment in 28 U.S.C. § 2254 11 Habeas Corpus Case — To Be Sent to Clerk’s Office.” Respondent shall not combine 12 separate pleadings, orders or other items into a combined lodgment entry. Each item shall 13 be numbered separately and sequentially. 14 5. Petitioner may file a traverse to matters raised in the answer no later than 15 June 28, 2021. Any traverse by Petitioner (a) shall state whether Petitioner admits or 16 denies each allegation of fact contained in the answer; (b) shall be limited to facts or 17 arguments responsive to matters raised in the answer; and (c) shall not raise new grounds 18 for relief that were not asserted in the Petition. Grounds for relief withheld until the 19 traverse will not be considered. No traverse can exceed ten (10) pages in length absent 20 advance leave of Court for good cause shown. 21 6. A request by a party for an extension of time within which to file any of the 22 pleadings required by this Order shall be made in advance of the due date of the pleading, 23 and the Court will grant such a request only upon a showing of good cause. Any such 24 request shall be accompanied by a declaration under penalty of perjury explaining why an 25 extension of time is necessary. 26 7. Unless otherwise ordered by the Court, this case will be deemed submitted on 27 the day following the date Petitioner’s opposition to a motion to dismiss and/or his traverse 28 is due. l 8. Every document delivered to the Court shall include a certificate of service 2 || attesting that a copy of such document was served on opposing counsel (or on the opposing 3 || party, if such party is not represented by counsel). Any document delivered to the Court 4 without a certificate of service will be returned to the submitting party and will be 5 || disregarded by the Court. 6 9. Petitioner shall immediately notify the Court and counsel for Respondent of 7 change of Petitioner’s address. If Petitioner fails to keep the Court informed of where 8 || Petitioner may be contacted, this action will be subject to dismissal for failure to prosecute. 9 10 || Dated: March 26, 2021 . A Burkhead 12 n. Jill L. Burkhardt 3 ited States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28