Nabong v. Barnes

Northern District of California, cand-4:2014-cv-05509

ORDER ON INITIAL REVIEW re {{3}} MOTION for Extension of Time to File filed by Jimmy L. Nabong. Motion is DENIED as improper. Respondent shall file with this Court and serve upon Petitioner, within twenty-eight (28) days of the issuance of this Or der, a motion to dismiss the petition as untimely, if appropriate. Signed by Judge Magistrate Judge Donna M. Ryu on 1/15/15. Modified on 1/15/2015 Modified on 1/16/2015 Modified on 1/30/2015

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 JIMMY L. NABONG, 9 Case No. 14-cv-05509-DMR (PR) Petitioner, 10 ORDER ON INITIAL REVIEW v. 11 RON BARNES, Acting Warden, 12 Northern District of California Respondent. United States District Court 13 14 On December 17, 2014, Petitioner, a state prisoner, filed this petition for a writ of habeas 15 corpus pursuant to 28 U.S.C. § 2254. Dkt. 1. He has paid the $5.00 filing fee. This action has 16 been assigned to the undersigned Magistrate Judge. 17 Pursuant to 28 U.S.C. § 636(c), with written consent of all parties, a magistrate judge may 18 19 conduct all proceedings in a case, including entry of judgment. Appeal will be directly to the 20 United States Court of Appeals for the Ninth Circuit. See 28 U.S.C. § 636(c)(3). 21 On January 7, 2015, Petitioner consented to magistrate judge jurisdiction in this matter. 22 Petitioner has also filed a motion entitled, "Motion for Extension of Time." Dkt. 3. In his 23 motion, Petitioner states that the instant petition was supposed to have been filed by August 28, 24 2014. Id. at 1. He claims that he was not able to meet this deadline because he "was sent to 25 [administrative segregation] with no access to the law library therefore hindering [his] research." 26 27 Id. Thus, Petitioner has made a nunc pro tunc request for an extension of time to file the instant 28 petition. Id. at 2. The Court notes that if the petition in this action was filed more than a year after Petitioner's conviction became final, then it may be untimely based on the one-year limitation 1 2 period under 28 U.S.C. § 2244(d), the statute of limitations established by the Antiterrorism and 3 Effective Death Penalty Act of 1996 ("AEDPA"). This apparent procedural problem should be 4 addressed before the Court reaches the merits of the claims raised in the petition. If the petition is 5 time-barred, the litigants and Court need not expend resources addressing the claims in the petition. 6 However, Petitioner's "Motion for Extension of Time" is not the proper vehicle to address such a 7 problem. Therefore, Petitioner's motion is DENIED as improper. Dkt. 3. Instead, pursuant to 8 Rule 4 of the Rules Governing Section 2254 Cases In The United States District Courts, the Court 9 10 shall issue this Order On Initial Review, serve Respondent, and direct Respondent to either 11 (1) move to dismiss the petition on the ground that it is untimely, or (2) inform the Court that 12 Respondent is of the opinion that a motion to dismiss is unwarranted in this case. If Respondent Northern District of California United States District Court 13 files a motion to dismiss, Respondent must address the equitable tolling1 argument (i.e., Petitioner's 14 aforementioned alleged lack of access to the law library) in his motion to dismiss. Petitioner may 15 file an opposition to Respondent's motion to dismiss and include (and elaborate upon) the same 16 arguments relating to equitable tolling that he has raised in his "Motion for Extension of Time." 17 18 Good cause appearing, the Court hereby issues the following orders: 19 1. The Clerk of the Court shall serve a Magistrate Judge jurisdiction consent form, a 20 copy of this Order, as well as the petition and all attachments thereto as well as Petitioner's 21 "Motion for Extension of Time" (Dkts. 1, 3) upon Respondent and Respondent's attorney, the 22 Attorney General of the State of California. The Clerk shall also serve a copy of this Order on 23 Petitioner at his current address. 24 25 2. Within twenty-eight (28) days of the issuance of this Order, Respondent shall 1 26 The Supreme Court has determined that the AEDPA's statute of limitations is subject to equitable tolling in appropriate cases. Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). "When 27 external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate." Miles v. Prunty, 187 28 F.3d 1104, 1107 (9th Cir. 1999). 2 complete and file the Magistrate Judge jurisdiction consent form to indicate whether he consents or 1 2 declines to proceed before the assigned Magistrate Judge. Respondent is free to withhold consent 3 without adverse consequences. If Respondent consents to a Magistrate Judge's jurisdiction, this 4 case will be handled by the undersigned Magistrate Judge. If Respondent declines, the case will be 5 reassigned to a District Judge. Whether Respondent consents or declines to proceed before the 6 assigned Magistrate Judge, the parties shall abide by the briefing schedule below. 7 3. Petitioner's "Motion for Extension of Time" is DENIED as improper. Dkt. 3. 8 Respondent shall file with this Court and serve upon Petitioner, within twenty-eight (28) days of 9 10 the issuance of this Order, a motion to dismiss the petition as untimely, if appropriate (along with 11 any other relevant procedural grounds), or a notice that Respondent is of the opinion that a motion 12 to dismiss is unwarranted. As directed above, at the time Respondent files any motion to dismiss, Northern District of California United States District Court 13 he shall also submit a completed Magistrate Judge consent form. If Respondent files a motion to 14 dismiss, Petitioner shall file with the Court and serve on Respondent an opposition or statement of 15 non-opposition to the motion within twenty-eight (28) days of receipt of the motion, and 16 Respondent shall file with the Court and serve on Petitioner a reply within fourteen (14) days of 17 18 receipt of any opposition. 19 4. It is Petitioner's responsibility to prosecute this case. Petitioner must keep the 20 Court and Respondent informed of any change of address and must comply with the Court's orders 21 in a timely fashion. Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose 22 address changes while an action is pending must promptly file a notice of change of address 23 specifying the new address. See L.R. 3-11(a). The Court may dismiss a pro se action without 24 25 prejudice when: (1) mail directed to the pro se party by the Court has been returned to the Court as 26 not deliverable, and (2) the Court fails to receive within sixty days of this return a written 27 communication from the pro se party indicating a current address. See L.R. 3-11(b); see also 28 Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). 3 Petitioner must also serve on Respondent's counsel all communications with the Court by mailing a 1 2 true copy of the document to Respondent's counsel. 3 5. Extensions of time are not favored, though reasonable extensions will be granted. 4 Any motion for an extension of time must be filed no later than fourteen (14) days prior to the 5 deadline sought to be extended. 6 6. This Order terminates Docket No. 3. 7 IT IS SO ORDERED. 8 Dated: January 15, 2015 ______________________________ 9 DONNA M. RYU 10 United States Magistrate Judge 11 P:\PRO-SE\DMR\HC.14\Nabong5509.OrderREfileMTDorNotice.docx 12 Northern District of California United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4