Garcia v. McVay

4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA MANUEL R. GARCIA, Case No. 22-cv-02612-DMR (PR) 8 Petitioner, ORDER TO SHOW CAUSE v. MATTHEW McVAY, Acting Warden,1 Respondent.

12 Petitioner, a state prisoner, filed a petition for a writ of habeas corpus pursuant to 28 13 U.S.C. § 2254. Dkt. 1. On July 27, 2022, the court reviewed the original petition, determined that Petitioner needed to correct certain deficiencies, and issued its Order of Dismissal With Leave to Amend and Order Granting Motion for Leave to Proceed In Forma Paupers. Dkt. 8. Thereafter, Petitioner filed his Amended Petition, but he did not sign it. See Dkt. 9 at 6. On August 22, 2022, the Clerk of the Court directed Petitioner to sign his Amended Petition. Dkt. 10. Thus, on September 9, 2022, Petitioner filed his signed Amended Petition, which is the operative petition in this matter. Dkt. 11. This action has been assigned to the undersigned Magistrate Judge.

20 Pursuant to 28 U.S.C. § 636(c), with written consent of all parties, a magistrate judge may conduct all proceedings in a case, including entry of judgment. Appeal will be directly to the United States Court of Appeals for the Ninth Circuit. See 28 U.S.C. § 636(c)(3).

23 It does not appear from the face of the Amended Petition that it is without merit. Good cause appearing, the court hereby issues the following orders: 25 1. The Clerk shall serve electronically a Magistrate Judge jurisdiction consent form, a Matthew McVay, the current acting warden of the prison where Petitioner is incarcerated, copy of this order upon Respondent and Respondent’s attorney, the Attorney General of the State of California, at the following email addresses: SFAWTParalegals @doj.ca.gov and [email protected]. The Amended Petition (Dkt. 11) and the exhibits thereto are available via the Electronic Case Filing System for the Northern District of California. The Clerk shall serve by mail a copy of this order on Petitioner.

6 2. Within twenty-eight (28) days of the issuance of this Order, Respondent shall complete and file the Magistrate Judge jurisdiction consent form to indicate whether Respondent consents or declines to proceed before the assigned Magistrate Judge. Respondent is free to withhold consent without adverse consequences. If Respondent consents to a Magistrate Judge’s jurisdiction, this case will be handled by the undersigned Magistrate Judge. If Respondent declines, the case will be reassigned to a District Judge. Whether Respondent consents or declines to proceed before the assigned Magistrate Judge, the parties shall abide by the briefing schedule below.

14 3. Respondent shall file with this court and serve upon Petitioner, within sixty (60) days of the issuance of this Order, an Answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued.

17 Respondent shall file with the Answer a copy of all portions of the relevant state records that have been transcribed previously and that are relevant to a determination of the issues presented by the Amended Petition.

20 4. If Petitioner wishes to respond to the Answer, Petitioner shall do so by filing a Traverse with the court and serving it on Respondent within twenty-eight (28) days of Petitioner’s receipt of the Answer. Should Petitioner fail to do so, the Amended Petition will be deemed submitted and ready for decision twenty-eight (28) days after the date Petitioner is served with Respondent’s Answer.

25 5. Respondent may file with this court and serve upon Petitioner, within sixty (60) days of the issuance of this Order, a motion to dismiss on procedural grounds in lieu of an Answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section on Respondent an opposition or statement of non-opposition to the motion within twenty-eight (28) days of receipt of the motion, and Respondent shall file with the court and serve on Petitioner a reply within fourteen (14) days of receipt of any opposition.

4 6. It is Petitioner’s responsibility to prosecute this case. Petitioner must keep the court and Respondent informed of any change of address and must comply with the court’s orders in a timely fashion. Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes while an action is pending must promptly file a notice of change of address specifying the new address. See L.R. 3-11(a). The court may dismiss a pro seaction without prejudice when: (1) mail directed to the pro se party by the court has been returned to the court as not deliverable, and (2) the court fails to receive within sixty days of this return a written communication from the pro se party indicating a current address. See L.R. 3-11(b); see also Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases).

13 Petitioner must also serve on Respondent’s counsel all communications with the court by mailing a true copy of the document to Respondent’s counsel.

15 7. Upon a showing of good cause, requests for a reasonable extension of time will be granted provided they are filed on or before the deadline they seek to extend.

17 IT IS SO ORDERED.

18 Dated: February 13, 2023 DONNA M. RYU 21 United States Magistrate Judge