1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DENNIS NEWTON ERVINE, No. 2:15-cv-1916 DJC SCR 12 Petitioner, DEATH PENALTY CASE 13 v. 14 JEFF LYNCH, Warden, California State ORDER Prison, Sacramento, 15 Respondent. 16

17 Petitioner is a condemned state prisoner proceeding through counsel with a petition for a 18 writ of habeas corpus under 28 U.S.C. §2254. Before the court is respondent’s motion: (1) for an 19 extension of time to file a reply to petitioner’s opposition to respondent’s motion to dismiss, and 20 (2) to vacate the due date for respondent’s answer. (ECF No. 81.) Petitioner does not oppose the 21 extension of time but opposes the request to vacate the deadline for the answer. (ECF No. 87.) 22 Respondent’s counsel explains that an extension of time to file the reply is necessary 23 because he is on paternity leave from early August through September and because petitioner’s 24 opposition was expected to be, and is, lengthy (see ECF No. 86). The court finds good cause for 25 respondent’s unopposed request. Any reply in support of respondent’s motion to dismiss shall be 26 filed by October 31, 2024. 27 //// 28 1 With respect to respondent’s motion to vacate the due date for the answer, respondent 2 notes that he had previously agreed to the current September 23, 2024 due date. Respondent 3 states that the agreement was based on his representation that that the motion to dismiss would 4 challenge the exhaustion status of just two of petitioner’s claims. Respondent felt that the merits 5 of the remaining, exhausted claims could be addressed in an answer prior to resolution of the 6 motion to dismiss. Respondent states that, after further review, he determined that all of 7 petitioner’s claims are at least partly unexhausted.1 The motion to dismiss challenges the 8 exhaustion status of some aspects of each of petitioner’s claims. (See ECF No. 72.) 9 Petitioner opposes the motion to vacate. (ECF No. 87.) Petitioner argues that respondent 10 has had a lengthy period of time to prepare an answer, that the merits of respondent’s motion to 11 dismiss are “very weak,” that resolution of respondent’s motion should be “straightforward,” and 12 that, due to his poor health, he wishes to expedite these proceedings. Petitioner asks the court to 13 set a due date of February 28, 2025 for the answer. In reply, respondent argues that he is not 14 responsible for most of the delays in these proceedings and takes issue with petitioner’s 15 characterization of the merits of the motion to dismiss. (ECF No. 88.) 16 This court need not, and will not, consider the merits of respondent’s motion at this time 17 except to note that respondent’s motion is 60 pages long and petitioner’s opposition is 166 pages. 18 The length of the parties’ briefs indicates that the issues raised by respondent’s motion, even if 19 straightforward, will require some time to resolve. 20 While the court is sympathetic to petitioner’s wish to expedite these proceedings, 21 respondent should not be required to prepare an answer to claims that may be dismissed. Rule 4 22 of the Rules Governing Section 2254 Cases permits an “answer, motion, or other response” to a 23 petition. See also White v. Lewis, 874 F.2d 599, 602-03 (9th Cir.1989) (a motion to dismiss 24 pursuant to Rule 4 is proper in a federal habeas proceeding). The Advisory Committee Notes to 25 Rule 4 of the Rules Governing Section 2254 Cases state that a dismissal on procedural grounds 26 may obviate the need for filing an answer on the substantive merits of the petition. Further, it is 27 1 Respondent previously agreed that some of plaintiff’s subclaims are exhausted. (See ECF Nos. 28 87 at 2, 88 at 2.) 1 | worth noting that an answer is typically not required in a civil case until a motion to dismiss has 2 || been resolved. See Fed. R. Civ. P. 12(b) (motion asserting failure to state a claim upon which 3 || relief can be granted “must be made before pleading”); Fed. R. Civ. P. 12(a)(4) (responsive 4 | pleading due 14 days after resolution of motion); see also Rules Governing Section 2254 Cases, 5 || Rule 12 (Federal Rules of Civil Procedure applicable in §2254 cases to the extent they are not 6 || inconsistent with habeas statute or rules). This court will grant respondent’s motion to require an 7 || answer within 90 days of the resolution of the motion to dismiss. Respondent is warned, 8 | however, that given the significant passage of time, this court expects respondent to file a timely 9 || answer. Extensions of the deadline will be granted only upon a showing of extraordinary 10 || circumstances. 11 For the foregoing reasons, and good cause appearing, IT IS HEREBY ORDERED that 12 1. Respondent’s motion for an extension of time to file a reply in support of his motion 13 to dismiss (ECF No. 81) is granted. Respondent shall file any reply by October 31, 14 2024. 15 2. Respondent’s motion to vacate the due date for the answer (ECF No. 81) is granted. 16 Respondent’s answer will be due 90 days after the issuance of the district judge’s 17 order resolving respondent’s motion to dismiss. 18 | DATED: September 3, 2024 Endo 20

SEAN C. RIORDAN

21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28