1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RONALD BRYSON, Case No.: 22-cv-556-JES-DDL

12 Petitioner,

ORDER:

13 v. (1) GRANTING MOTION FOR 14 JEFF MACOMBER, Secretary1, et al.,

LEAVE TO FILE AN AMENDED

15 Respondents. PETITION [Dkt. No. 22];

16 (2) REQUIRING RESPONSE TO 17 AMENDED 28 U.S.C. § 2254 PETITION [Dkt. No. 23] 18 19 Petitioner, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas 20 Corpus pursuant to 28 U.S.C. § 2254, a Motion for Stay and Abeyance, a Motion for 21 Evidentiary Hearing, and a Motion for Discovery in this Court on April 20, 2022. Dkt. Nos. 22 1–4. He did not pay the $5.00 filing fee or submit a Motion to Proceed in Forma Pauperis 23 24 25 26 1 The Court sua sponte substitutes Jeff Macomber, Secretary of the California Department 27 of Corrections and Rehabilitation in place of Theresa Cisneros. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (stating that the respondent in § 2254 proceedings 28 1 (“IFP”), and so the Court dismissed his case without prejudice and with leave to amend on 2 May 12, 2022. Dkt. No. 5. 3 On July 11, 2022, Petitioner filed an IFP motion, which was denied. Dkt. No. 7. His 4 Motion for Stay and Abeyance, Motion for Evidentiary Hearing, and Motion for Discovery 5 were also denied without prejudice. Id. Petitioner later paid the $5.00 filing fee on 6 November 23, 2022, and refiled his Motion for Stay and Abeyance on February 1, 2023, 7 which the Court denied as moot on August 18, 2023 because Petitioner notified the Court 8 that he had exhausted his previously unexhausted claims. Dkt. Nos. 12, 14, 20. He then 9 filed a Motion for Leave to File an Amended Petition and an Amended Petition on 10 September 18, 2023. Dkt. Nos. 22–23. 11 Petitioner has now alleged exhaustion as to all of his claims and therefore the Court 12 GRANTS his Motion for Leave to File an Amended Petition [Dkt. No. 22]. 13 Further, in accordance with Rule 4 of the rules governing petitions for a writ of 14 habeas corpus pursuant to 28 U.S.C. § 2254, and upon a preliminary review of the 15 Amended Petition, IT IS ORDERED that: 16 1. The Clerk of this Court must promptly (a) serve a copy of the Amended 17 Petition and a copy of this Order on the Attorney General for the State of California, or her 18 authorized agent; and (b) serve a copy of this Order on Petitioner. 19 2. Respondent must file a “Notice of Appearance” no later than November 17, 20 2023. 21 3. If Respondent contends the Amended Petition can be decided without the 22 Court’s reaching the merits of Petitioner’s claims (e.g., because Respondent contends 23 Petitioner has failed to exhaust any state remedies as to any ground for relief alleged in the 24 Amended Petition, or that the Amended Petition is barred by the statute of limitations, or 25 that the Amended Petition is subject to dismissal under Rule 9 of the Rules Governing 26 § 2254 Cases, or that all of the claims are procedurally defaulted, or that Petitioner is not 27 in custody), Respondent must file a motion to dismiss pursuant to Rule 4 of the Rules 28 Governing § 2254 Cases no later than January 3, 2024. The motion to dismiss must not 1 address the merits of Petitioner’s claims, but rather must address all grounds upon which 2 Respondent contends dismissal without reaching the merits of Petitioner’s claims is 3 warranted.2 At the time the motion to dismiss is filed, Respondent must lodge with the 4 Court all records bearing on Respondent’s contention in this regard. A hearing date is not 5 required for the motion to dismiss. 6 4. If Respondent files a motion to dismiss, Petitioner must file his opposition, if 7 any, to the motion no later than February 2, 2024. At the time the opposition is filed, 8 Petitioner must lodge with the Court any records not lodged by Respondent which 9 Petitioner believes may be relevant to the Court’s determination of the motion. 10 5. Unless the Court orders otherwise, Respondent must not file a reply to 11 Petitioner’s opposition to a motion to dismiss. If the motion is denied, the Court will afford 12 Respondent adequate time to respond to Petitioner’s claims on the merits. 13 6. If Respondent does not contend that the Amended Petition can be decided 14 without the Court reaching the merits of Petitioner’s claims, Respondent must file and 15 serve an answer to the Amended Petition, and a memorandum of points and authorities in 16 support of such answer, pursuant to Rule 5 of the Rules Governing § 2254 Cases no later 17 than January 3, 2024. At the time the answer is filed, Respondent must lodge with the 18 Court all records bearing on the merits of Petitioner’s claims. The lodgments must be 19 accompanied by a notice of lodgment which must be captioned “Notice of Lodgment in 20 28 U.S.C. § 2254 Habeas Corpus Case — To Be Sent to Clerk’s Office.” Respondent 21 must not combine separate pleadings, orders or other items into a combined lodgment 22 entry. Each item must be numbered separately and sequentially. 23 7. Petitioner may file a traverse to matters raised in the answer no later than 24 February 2, 2024. Any traverse by Petitioner (a) must state whether Petitioner admits or 25

26 27 2 If Respondent contends Petitioner has failed to exhaust any state remedies as to any ground for relief alleged in the Amended Petition, the motion to dismiss must also specify 28 1 ||denies each allegation of fact contained in the answer; (b) must be limited to facts or 2 arguments responsive to matters raised in the answer; and (c) must not raise new grounds 3 || for relief that were not asserted in the Amended Petition. Grounds for relief withheld until 4 || the traverse will not be considered. No traverse can exceed ten (10) pages in length absent 5 advance leave of Court for good cause shown. 6 8. A request by a party for an extension of time within which to file any of the 7 pleadings required by this Order must be made at least seven (7) days in advance of the 8 date of the pleading, and the Court will grant such a request only upon a showing of 9 || good cause. Any such request must be accompanied by a declaration under penalty of 10 || perjury explaining why an extension of time is necessary. 11 9. Unless otherwise ordered by the Court, this case will be deemed submitted on 12 || the day following the date Petitioner’s opposition to a motion to dismiss and/or his traverse 13 due. 14 10. Every document delivered to the Court must include a certificate of service 15 || attesting that a copy of such document was served on opposing counsel (or on the opposing 16 party, if such party is not represented by counsel). Any document delivered to the Court 17 || without a certificate of service will be returned to the submitting party and will be 18 || disregarded by the Court. 19 11. Petitioner must immediately notify the Court and counsel for Respondent of 20 || any change of Petitioner’s address. If Petitioner fails to keep the Court informed of where 21 || Petitioner may be contacted, this action will be subject to dismissal for failure to prosecute. 22 IT IS SO ORDERED. 23 || Dated: October 20, 2023 _—_— 24 Tb lhe 25 “Hon.DavidD.Leshner SCS 26 United States Magistrate Judge 27 28