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Gresham v. Subia


November 7, 2008


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


Petitioner is a state prisoner proceeding pro se on application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On September 4, 2008, the undersigned filed findings and recommendations wherein it was recommended that respondent's February 1, 2008, motion to dismiss the petition as barred by the AEDPA statute of limitations be denied. On October 2, 2008, the court granted respondent an extension of time to file objections. Thereafter, respondent sought a second extension of time which, although approved by the undersigned, was not docketed at the time due to an apparent administrative error. Thus, the court now grants respondent's second request for an extension of time nunc pro tunc and deems respondent's November 3, 2008, objections timely.

Chief among respondent's objections to the findings and recommendations appears to be that the undersigned, after having obtained attorney-client records in order to determine whether or not equitable tolling should be granted based on the conduct of petitioner's retained state habeas attorney, expanded the record and sealed the records without providing respondent access to them. Respondent's counsel also objected, although he would appear to have no standing to do so, to the court's having used the documents submitted by petitioner's state habeas counsel without having found that petitioner expressly waived the attorney-client privilege. The court notes that in setting forth the basis for its finding that petitioner was entitled to equitable tolling based on the documentation produced to the court for in camera review, the undersigned took care to not set forth details which might implicate the privilege. Notwithstanding, based on respondent's objections, the court will now withdraw the pending Findings and Recommendations, while it will be directed that the Order portion of the court's September 4, 2008, filing is to remain in full effect.

In addition, in light of the complexity of the legal issues involved, the court has determined that the interests of justice require appointment of counsel. See 18 U.S.C. § 3006A(a)(2)(B); see also Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

Accordingly, IT IS ORDERED that:

1. Respondent's second request for an extension of time, filed on October 14, 2008 (# 27), to file objections to the September 9, 2008, findings and recommendations is granted, nunc pro tunc, and respondent's November 3, 2008 (# 28), objections are deemed timely filed;

2. The Findings and Recommendations, filed on September 9, 2008 (# 23), are hereby vacated, but the Order portion of docket # 23, sealing documents filed at docket entry # 24, remains in effect;

3. The Federal Defender is appointed to represent petitioner.

4. The Clerk of the Court is directed to serve a copy of this order on Carolyn Wiggin, Assistant Federal Defender.

5. Petitioner's counsel shall contact the Clerk's Office to make arrangements for copies of documents in the file.

6. A status conference is set for November 20, 2008, at 10:00 a.m., in Courtroom # 24.

7. All parties shall appear at the status conference by counsel.


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