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Darulis v. Iaria

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 27, 2008

MARK DARULIS, PETITIONER,
v.
VINCENT J. IARIA, RESPONDENT.

The opinion of the court was delivered by: Cathy Ann Bencivengo United States Magistrate Judge

ORDER REQUIRING SUPPLEMENTAL BRIEFING FROM RESPONDENT

Petitioner Mark Darulis, proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner raised the following grounds for relief: (1) his Sixth Amendment right to effective assistance of counsel was violated when his assigned public defender allegedly failed to call a forensic toxicologist to testify Petitioner's blood alcohol level was within the legal limits at the time he was driving his vehicle; (2) his Sixth Amendment rights and his Fourteenth Amendment right to due process were denied when the trial court did not grant him, while he was proceeding in pro per, a continuance of the trial date to allow him to borrow money to hire an attorney of his own choice; and (3) his guilty plea was made under duress because the denial of his request for a continuance forced him to plead guilty instead of proceeding in a trial for which he was not prepared. Respondent answered, [Doc. No. 7], and Petitioner filed a traverse, [Doc. No. 11].

On February 29, 2008, this Court issued a Report and Recommendation, in which it recommended the Petition be denied in its entirety. [Doc. No. 13.] On April 2, 2008, Petitioner objected to the Report and Recommendation. [Doc. No. 14.] In his objections, Petitioner argued for the first time at the federal level that the trial court never conducted a colloquy regarding his guilty plea. [Doc. No. 14 at 3.] Petitioner also suggested the trial court altered his plea form by adding facts after Petitioner had already signed and initialed the form. [Doc. No. 14 at 4.] Respondent did not reply to Petitioner's objections. On August 26, 2008, the Honorable M. James Lorenz issued an order adopting the Report and Recommendation as to Grounds One and Two, and remanding with respect to Ground Three, the allegation that Petitioner's guilty plea was not knowing and voluntary. [Doc. No. 15 at 5.]

Accordingly, it is HEREBY ORDERED that on or before September 12, 2008, Respondent shall file supplemental briefing addressing the two issues raised by Petitioner in his objections regarding whether the guilty plea was knowing and voluntary. Furthermore, if Respondent is unable to adequately respond to the objections based on the state court record, Respondent shall identify which individuals and/or documents would be necessary in order to develop the record, and the soonest possible time these individuals and/or documents would be available for an evidentiary hearing. See Bashor v. Risley, 730 F.2d 1228, 1233 (9th Cir. 1984) (holding that an evidentiary hearing is not required on issues which can be resolved on the basis of the state court record).

IT IS SO ORDERED.

20080827

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