Gracia v. Haws
Filing
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ORDER DENYING 30 Petitioner's Motion for Leave to File Untimely Traverse signed by Magistrate Judge Gary S. Austin on 11/8/2011. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ROBERT MEJIA GRACIA,
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Petitioner,
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v.
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F. HAWS, Warden,
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Respondent.
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1:10-CV-00273 GSA HC
ORDER DENYING PETITIONER'S MOTION
FOR LEAVE TO FILE UNTIMELY
TRAVERSE
[Doc. #30]
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Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus
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pursuant to 28 U.S.C. § 2254. The parties voluntarily consented to exercise of Magistrate Judge
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jurisdiction pursuant to 28 U.S.C. § 636(c)(1).
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On November 4, 2011, Petitioner filed a motion for leave to file an untimely traverse. The
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motion will be denied as this case is closed. The undersigned issued an order denying the petition
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and entering judgment on June 6, 2011. Petitioner filed a notice of appeal to the Ninth Circuit Court
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of Appeals, and the appeal was denied on October 25, 2011.
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To the extent Petitioner moves to vacate the judgment to reopen the time to file a traverse, his
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motion is denied. Petitioner states he was unable to timely file his traverse because prison officials
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lost or misplaced his petition on or about February 18, 2010, following a cell search. He also states
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U .S. D istrict C ourt
E. D . C alifornia
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he was being assisted by a fellow inmate who was transferred to another prison. He states he
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requested a copy of his petition from the Clerk’s office in August of 2011. Petitioner fails to
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demonstrate good cause for his failure to timely file a traverse. If in fact he was unable to comply
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due to these circumstances, he should have notified the Court, requested additional time, and sought
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relief at that time. Instead, he did nothing during the year the petition was pending a decision, and he
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did not seek relief for his allegations until months after the petition was denied and his appeal was
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dismissed.
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Accordingly, Petitioner’s motion for leave to file an untimely traverse is DENIED. Petitioner
is informed that this case is closed, and any additional filings will be stricken.
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IT IS SO ORDERED.
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Dated:
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November 8, 2011
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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