(HC) Austin v. Covello

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA EXZAVER DENNIS AUSTIN, No. 2:22-cv-01033-WBS-EFB (HC) 12 Petitioner, 13 v. ORDER RE SUPPLEMENTAL BRIEFING PATRICK COVELLO, 15 Respondent.

17 Petitioner is a state prisoner proceeding without counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. On August 15, 2022, respondent filed a motion to dismiss the petition as untimely. ECF No. 13. On November 2, 2022, petitioner filed an opposition (titled “Reply”) to respondent’s motion. ECF No. 21. Respondent did not file a reply.

22 Petitioner maintains in his opposition that he is entitled to equitable tolling based on two grounds. ECF No. 21. First, petitioner maintains that, pursuant to Bills v. Clark, 628 F.3d 1092, 1099-1101 (9th Cir. 2010), he is entitled to equitable tolling based on his alleged mental impairment. ECF No. 21 at pp. 2-3. Second, petitioner maintains that, pursuant to Schlup v. Delo, 513 U.S. 298, 332 (1995), he is entitled to equitable tolling based on his alleged actual innocence. ECF No. 21 at pp 3-5. While respondent addressed petitioner’s argument for ///// | equitable tolling based on actual innocence in his initial motion to dismiss, respondent did not || address petitioner’s argument for equitable tolling based on mental impairment. ECF No. 13.

3 Accordingly, the court hereby orders respondent to file a reply to ECF No. 21 within 30 || days of the date of this order. This reply should be focused on addressing petitioner’s argument || regarding equitable tolling based on mental impairment. Should petitioner wish to file a sur- || reply, he should do so within 21 days from the date of service of respondent’s reply.

7 So ordered.

8 | Dated: December 21, 2022. □□ PDEA 9 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 1]