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Johnny Avila, Jr v. Michael Martel


July 26, 2011


The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge


Order Appointing Counsel and Initiating Case Management Procedures

On July 19, 2011, Petitioner Johnny Avila, Jr. ("Avila"), a state prisoner facing capital punishment, filed a request for appointment of counsel, for stay of execution and to proceed in forma pauperis pursuant to 28 U.S.C. § 2254. On July 22, 2011, an order was issued conditionally granting in forma pauperis status pending documentation of his inmate trust account, referring the case to the Selection Board for the Eastern District of California for recommendation of counsel, and staying the execution until 90 days after appointment of counsel. The Selection Board recommends the Federal Defender for the Eastern District of California, Capital Habeas Unit, 801 I Street, 3rd Floor, Sacramento, California, 95814, (916) 498-6666, and Saor E. Stetler, Esq., P.O. Box 2189, Mill Valley, California, 94942-2189, (415) 388-8924, for appointment as co-counsel in 2 this case. 3 The Guide to Case Management and Budgeting in Capital Habeas 4 Cases, Eastern District of California, Fresno Division (hereafter the 5 "Attorney Guide") provides an overview of the process for capital habeas 6 corpus cases in this Court. Upon receipt of this order, counsel for the 7 parties, including Respondent Michael Martel (" Warden"), shall 8 familiarize themselves with Local Rule 191 of the United States District 9 Court for the Eastern District of California, and with the Attorney Guide, both of which are posted on the Court's web-page.*fn1

Mr. Stetler, pursuant to his appointment in two other capital habeas cases in this District, presented sufficient justification for authorization at the maximum reimbursement rate for lead counsel with substantial experience and skill in capital habeas proceedings. Duplicate presentation of the same qualifications are not necessary here. Mr. Stetler is authorized to be compensated at the maximum allowable rate for lead counsel, currently $178 per hour. The appropriate budget forms will be separately transmitted to Mr. Stetler for submission of the proposed Phase 1 budget. See Attorney Guide, ¶ 11.

Counsel for both parties are directed to complete and file the Confidential Case Evaluation Form (Appendix B to the Attorney Guide) within seven days of the date of filing of this order. See Attorney Guide, ¶ 49. The Court will maintain each Confidential Case Evaluation Form under seal, unless the party filing the Form elects to file it publicly. 2 Avila's proposed budget for Phase I should be presented to the Court 3 without delay, but should be filed no later than August 22, 2011. As 4 specified in the Attorney Guide, the proposed budget and application, 5 including supporting declarations, should be submitted to the Court under 6 seal.*fn2 An electronic copy of the Excel file should be submitted via email to 7 the Court. The proposed budget should include all tasks to be completed 8 during Phase I, including the time actually spent on tasks which already 9 have been completed or partially performed. The proposed budget need only specify the hours and expenses for CJA counsel on the Excel form, but the supporting declaration should indicate the division of labor and allocation of resources with the Federal Defender, including the hours anticipated to be expended by the Federal Defender in each category. A budget for Phase I of the litigation must be approved before any reimbursement for professional services will be authorized. See Attorney Guide, ¶¶ 48-52. Counsel will not be reimbursed for work performed before the date of appointment without prior approval on a showing of good cause.

The initial Case Management and Budgeting Conference ("CMC") for Phase I of this case is set for August 29, 2011, at 3:00 p.m., and will be held telephonically. The purpose of the initial CMC will be to discuss the status of record assembly and review by Avila's counsel, case complexity, an approximate date for the Warden to lodge the state record, the one-year 2 statute of limitations, the scheduling of a second CMC, and any other 3 matters the parties wish to discuss together with the Court. Once case 4 management issue are resolved, counsel for the Warden will be excused 5 from the CMC so the Court may discuss budgeting matters with Avila's 6 counsel on an ex parte basis. 7 8 Good cause appearing, 9 The Federal Defender for the Eastern District of California, Capital Habeas Unit, and Saor E. Stetler, Esq., are appointed as co-counsel to represent Avila for all purposes in these proceedings.

Counsel for both parties shall file the Confidential Case Evaluation Form, within seven days of the filing date of this order.

Counsel for Avila shall file the proposed Phase I budget on or before August 22, 2011. A telephonic Case Management Conference shall be held August 29, 2011, at 3:00 p.m. Counsel for Avila shall initiate the conference call.


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