(HC) Shepard v. Gipson, No. 2:2013cv01812 - Document 19 (E.D. Cal. 2014)

Court Description: ORDER signed by Judge John A. Mendez on 6/10/2014 ORDERING that the 17 Findings and Recommendations are ADOPTED with modification. Petitioner's 4 motion for a stay is DENIED. Respondent's request to dismiss the petition with prejudic e based on its untimeliness is DENIED as premature. Respondent is directed to file an answer to the petition, or in the alternative, a motion to dismiss petitioner's habeas corpus petition, within thirty days from the date of this order; petiti oner's traverse or opposition to a motion to dismiss shall be filed and served within thirty days thereafter, and respondent's reply, if any, shall be filed and served within fourteen days following petitioner's opposition. Petitioner is directed to file any exhibits or documents supporting any request for equitable tolling based on an alleged mental impairment along with his opposition to any motion to dismiss. (Zignago, K.)

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(HC) Shepard v. Gipson Doc. 19 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MALCOLM SHEPARD, 12 13 14 15 No. 2:13-cv-1812 JAM AC P Petitioner, v. ORDER CONNIE GIPSON, Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate 19 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On February 7, 2014, the magistrate judge filed findings and recommendations herein 21 which were served on all parties and which contained notice to all parties that any objections to 22 the findings and recommendations were to be filed within twenty-one days. Respondent has filed 23 objections to the findings and recommendations. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 25 court has conducted a de novo review of this case. The date set forth in the findings and 26 recommendations as the date of the summary denial of petitioner’s habeas petition filed in the 27 28 1 Dockets.Justia.com 1 California Court of Appeal is herein corrected to March 7, 2013.1 Having carefully reviewed the 2 entire file, the court finds the findings and recommendations to be otherwise supported by the 3 record and by proper analysis. 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. The findings and recommendations filed February 7, 2014, are adopted with the 6 modification noted above; 7 8 2. Petitioner’s motion for a stay (ECF No. 4) is denied for the reasons stated in the findings and recommendations; 9 10 2. Respondent’s request to dismiss the petition with prejudice based on its untimeliness is denied as premature; 11 3. Respondent is directed to file an answer to the petition, or. in the alternative, a motion 12 to dismiss petitioner’s habeas corpus petition, within thirty days from the date of this order; 13 petitioner’s traverse or opposition to a motion to dismiss shall be filed and served within thirty 14 days thereafter, and respondent’s reply, if any, shall be filed and served within fourteen days 15 following petitioner’s opposition; and 16 4. Petitioner is directed to file any exhibits or documents supporting any request for 17 equitable tolling based on an alleged mental impairment along with his opposition to any motion 18 to dismiss. 19 DATED: June 10, 2014 20 /s/ John A. Mendez_______________________ 21 UNITED STATES DISTRICT COURT JUDGE 22 23 24 25 26 27 28 1 The date of the filing of the petition, February 17, 2013, was therein evidently inadvertently transposed for the date of the summary denial. See Lodged Documents 7 and 8. 2

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