Free Order - District Court of California - California

Case 4:07-cv-03354-CW

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Filed 03/24/2008

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On February 21, 2007, Petitioner signed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and it was file stamped in this Court on June 26, 2007. Also on June 26, 2007, v. JAMES TILTON, Warden, Respondent. / DALE WILLS, Petitioner, No. C 07-03354 CW (PR) ORDER ADDRESSING PENDING MOTION (Docket no. 3) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Petitioner filed a document entitled "Petitioner's Notice of Motion and Motion for Order Directing Clerk to Endorse File Papers Retroactively" (docket no. 3). Petitioner states, "under the

'prison mailbox rule' he is entitled to have his petition and memorandum of points and authorities endorsed [sic] filed retroactively to the date of February 21, 2007, the date the papers were first given to prison officials for delivery to the Court." (Mot. for Order at 2.) Under the "mailbox rule," a pro se federal habeas petition is deemed filed on the date it is delivered to prison authorities for mailing. See Saffold v. Newland, 250 F.3d 1262, 1268 (9th Cir.

2001), vacated and remanded on other grounds, Carey v. Saffold, 536

Case 4:07-cv-03354-CW

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

U.S. 214 (2002) (holding that a federal or state habeas petition is deemed filed on the date the prisoner submits it to prison authorities for mailing, rather than the date it is received by the courts). On September 6, 2007, the Court issued an Order to Show Cause. On October 16, 2007, Respondent filed motion to dismiss the petition as untimely (docket no. 8). Petitioner opposes the motion

to dismiss and raises the same argument that his federal petition should be deemed filed on February 21, 2007. (Opp'n at 11.) The

Court will consider Petitioner's "prison mailbox rule" argument when it rules on Respondent's motion to dismiss. Therefore, the

Court construes "Petitioner's Notice of Motion and Motion for Order Directing Clerk to Endorse File Papers Retroactively" as a supplement to his opposition to Respondent's motion to dismiss. IT IS HEREBY ORDERED that "Petitioner's Notice of Motion and Motion for Order Directing Clerk to Endorse File Papers Retroactively" (docket no. 3) is ADMINISTRATIVELY TERMINATED as unnecessary. The Clerk of the Court shall docket the

aforementioned motion as a "Supplement to Petitioner's Opposition to Respondent's Motion to Dismiss." This Order terminates Docket no. 3. IT IS SO ORDERED. Dated: 3/24/08 CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE

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1 2 3 DALE WILLS, 4 Plaintiff, 5 v. 6 JAMES TILTON et al, 7 Defendant. 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV07-03354 CW CERTIFICATE OF SERVICE

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on March 24, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Bruce Louis Ortega California State Attorney's Office 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102-7004 Dale G. Wills J-16405 Corcoran State Prison P.O. Box 5246 Corcoran, CA 93212-5246 Dated: March 24, 2008 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk

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