UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
July 13, 2011
JAMES HARTLEY, WARDEN, ET AL, RESPONDENTS.
The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DIRECTING RESPONDENT TO FILE SUPPLEMENTAL BRIEFING AND RECORD NO LATER THAN THIRTY (30) DAYS AFTER THE DATE OF SERVICE OF THIS ORDER
ORDER PERMITTING PETITIONER TO
FILE A RESPONSE NO LATER THAN
THIRTY (30) DAYS AFTER THE DATE
OF SERVICE OF RESPONDENT'S
BRIEFING AND RECORD
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the Court is Respondent's motion to dismiss the remaining claim in the petition, which concerns an alleged violation of due process predicated on the inconsistency of the governor's rescission of parole with Petitioner's plea bargain concerning the commitment offense. Petitioner filed an opposition. Respondent did not file a reply.
Respondent claims that the issue concerning the plea bargain was not fairly presented to the state courts. However, Respondent appears to concede in the motion to dismiss that the petition filed in the California Supreme Court appears as pages 28 through 362 of the instant petition. *fn1 The Court notes that the pertinent pages include a copy of Petitioner's response to the Attorney General's informal response filed in the trial court habeas corpus proceeding. (Doc. 1, 345-48.) In that response, Petitioner addresses the plea bargain issue. It thus appears that the response was before the California Supreme Court. In his opposition, Petitioner also appears to assert that this response was submitted as an exhibit in petitions to the higher state courts. (Opp., doc. 13, 1.)
It would assist the Court to have briefing on whether this portion of the record is sufficient to constitute fair presentation to the California Supreme Court of the due process claim concerning the plea bargain. Further, review of the docket of Matthew Balkam on Habeas Corpus, case number S188405, reflects that an answer to the petition was filed in the Supreme Court, and Petitioner filed a reply. Further, a "doghouse" of the California Court of Appeal's record from a proceeding in that court was filed in the Supreme Court. *fn2 It is possible that this Court does not have before it the entire record of the proceedings in the California Supreme Court that pertains to the plea bargain claim.
A court has inherent power to control its docket and the disposition of its cases with economy of time and effort for both the court and the parties. Landis v. North American Co., 299 U.S. 248, 254-255 (1936); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). In the exercise of its discretion to facilitate economical disposition of the motion to dismiss, the Court will require Respondent to furnish the Court with the full record of the briefing in the proceeding in the California Supreme Court, including but not limited to the answer to the petition for review filed on December 22, 2010, and the reply to the answer filed on or about January 3, 2011. Further, Respondent should submit any portion of the record before the California Supreme Court that concerned the plea bargain claim.
Accordingly, IT IS ORDERED that:
1) Respondent shall SUBMIT to this Court no later than thirty (30) days after the date of service of this order copies of all briefing in Matthew Balkam on Habeas Corpus, California Supreme Court case number S188405, including but not limited to the answer to the petition and the reply to the answer; Respondent shall also submit any and all portions of the record before the California Supreme Court in that proceeding that have not previously been submitted by the parties and that mention or concern the plea bargain claim; and
2) Respondent shall FILE no later than thirty (30) days after the date of service of this order briefing concerning whether the fair presentation requirement was met by Petitioner's inclusion in the petition filed in the California Supreme Court of the response filed in the trial court, or by the presence of any other matter referring to the plea bargain claim in the briefing or other filings in the California Supreme Court proceeding; and
3) Petitioner may file a response no later than thirty (30) days after the date of service of Respondent's briefing.
IT IS SO ORDERED.