Ritchie v. Zuniga

Full title: STEVEN RAY RITCHIE, Petitioner, v. R. ZUNIGA, WARDEN, et al., Respondents.

Court: United States District Court, Ninth Circuit, California, E.D. California

Date published: Jul 16, 2015

2:15-cv-0008 KJN P (E.D. Cal. Jul. 16, 2015)

Opinion

STEVEN RAY RITCHIE, Petitioner, v. R. ZUNIGA, WARDEN, et al., Respondents. No. 2:15-cv-0008 KJN P United States District Court, E.D. California. July 16, 2015

          ORDER

          KENDALL J. NEWMAN, Magistrate Judge.

         Petitioner is a federal prisoner, proceeding without counsel. On June 29, 2015, petitioner filed a motion styled "Motion for Court Intervention..., " in which petitioner claims respondents have failed to file a responsive pleading. Petitioner contends that he has now completed the Residential Drug Abuse Program ("RDAP"), and contends he would have been released from custody on June 1, 2015, had prison officials applied the Arrington¹ rule when petitioner first applied for the RDAP. Petitioner asks the court to grant his petition based on respondents' alleged default.

1 Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2007) (Bureau of Prisons rule precluding RDAP sentence credit for inmates convicted of a firearms offense found to be procedurally invalid).

         On July 1, 2015, respondent filed a response to petitioner's motion, noting that they filed a motion to dismiss on May 15, 2015, and served petitioner with a copy of such filing on that same day. (ECF No. 19 at 1.) Nevertheless, on July 1, 2015, respondents mailed petitioner a second copy of the May 15, 2015 motion to dismiss by certified mail, return receipt requested.

         Court records confirm that the May 15, 2015 motion to dismiss was accompanied by a certificate of service attesting to service on petitioner. However, because it appears that petitioner did not receive the filing, petitioner is granted an extension of time in which to file his opposition. Because respondents timely-filed their motion, petitioner's motion for default is denied.

         Petitioner seeks to expedite resolution of this case, but the court cannot rule on the pending motion to dismiss until it is fully briefed. In any event, the pendency of this action does not preclude petitioner from applying for the Arrington credit now that he has completed the treatment program.

         Accordingly, IT IS HEREBY ORDERED that:

         1. Petitioner's motion for default (ECF No. 18) is denied; and

         2. Petitioner is granted twenty-one days from July 1, 2015, in which to file an opposition to the May 15, 2015 motion to dismiss; respondents' reply, if any, shall be filed seven days thereafter.