Oshay L. Johnson v. James Yates
Filing
22
ORDER Directing Respondent To File Response To Petitioner's Opposition To The Motion To Dismiss (Doc. 18 ), signed by Magistrate Judge Sandra M. Snyder on 3/3/2010. (Response due by 3/26/2010) (Scrivner, E)
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1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 JAMES YATES, Warden 13 Respondent. 14 15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 16 pursuant to 28 U.S.C. § 2254. 17 On October 9, 2009, Respondent filed a motion to dismiss the instant petition as 18 duplicative, untimely, and for failure to state a cognizable claim. (Court Doc. 15.) On December 19 17, 2009, the undersigned issued Findings and Recommendation to grant Respondent's motion to 20 dismiss. (Court Doc. 19.) However, on the same date, Petitioner filed an opposition to 21 Respondent's motion, with a proof of service date of December 6, 2009-which is timely under 22 23 The Court finds it necessary for Respondent to submit a response to Petitioner's claim 24 that his sentence was modified by way of an amended abstract of judgment on August 16, 2007. 25 26 27 28
See Rule 3(d) of the Federal Rules Governing Section 2254 Cases; See Houston v. Lack, 487 U.S. 266 ( 1 9 8 8 ) (deeming a prose prisoner's notice of appeal filed at the moment it was delivered to prison authorities for fo r w a r d in g to the clerk of court). The Ninth Circuit Court of Appeals held in Saffold v. Newland, 250 F.3d 1282, 1 2 8 8 -8 9 (9th Cir. 2000 amended May 23, 2001) that the "mailbox" rule as provided for in Houston also applies to s ta te and federal petitions with respect to calculating the statute of limitations under the AEDPA.
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UNITED STATES DISTRICT COURT
OSHAY L. JOHNSON, Petitioner, v.
1:09-cv-01355-OWW-SMS (HC) ORDER DIRECTING RESPONDENT TO FILE RESPONSE TO PETITIONER'S OPPOSITION TO THE MOTION TO DISMISS [Doc. 18]
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the mailbox rule.1 (Court Doc. 18.)
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(Exhibit A, to Opposition.) Accordingly, it is HEREBY ORDERED that within twenty (20) days from the date of service of this order, Respondent shall file a response to Petitioner's opposition to the motion to dismiss.
IT IS SO ORDERED. Dated: icido3 March 3, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE
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