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Johnny Avila, Jr v. Michael Martel

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 30, 2011

JOHNNY AVILA, JR.,
PETITIONER,
v.
MICHAEL MARTEL, ACTING WARDEN SAN QUENTIN STATE PRISON,
RESPONDENT.

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

DEATH PENALTY CASE Order Following Phase I Case of Management Conference

This matter came on for a Phase I Case Management Conference ("CMC") August 29, 2011, in the above entitled Court, the Honorable Anthony W. Ishii, presiding. Petitioner Johnny Avila, Jr. ("Avila") was represented by Timothy Foley and Harry Simon, assistant federal defenders with the Capital Habeas Unit of the Eastern District Federal Defender's Office, and by Saor Stetler, CJA counsel. Respondent Michael Martel, as Acting Warden of San Quentin State Prison (the "Warden") was represented by Deputy Attorney General Louis Vasquez. All counsel appeared telephonically.

In initiating case management procedures, the July 26, 2011 order directed counsel for both parties to familiarize themselves with the Fresno 1 Attorney Guide and Eastern District Local Rule 191. At the initial CMC 2 they were to be prepared to discuss the statute of limitations, the date for 3 the Warden to lodge the state record, and the time necessary for Avila to 4 assemble the record. That order also directed counsel for both parties to 5 complete confidential case evaluation forms, and counsel for Avila to file 6 under seal a proposed Phase I budget and case management plan.

7 The Warden noted that the Local Rule 191(h)(1) was amended July 1, 8 2011, and now requires the state record to be lodged within 45 days of 9 appointment of counsel*fn1 , which in this case would be by September 9, 2011.

In light of the large state record in this case, the Warden requested, and was granted, until September 30, 2011, to lodge the state record. Counsel for Avila indicated they have obtained much of the voluminous case record, but that the process of obtaining all files from prior defense counsel and investigators is still ongoing, and the records which have been obtained are being reviewed to determine if they are complete.

The parties agree the one-year statute of limitations period expires June 15, 2012. A second Phase I CMC was set for November 7, 2011, at 3 p.m., at which time counsel for Avila are expected to have completed a preliminary review of the state record and files in order to be able to state when they can submit a proposed budget for Phase II. Prior to the November CMC, counsel for both parties are to meet and confer regarding the due date for Avila's federal petition and a subsequent litigation schedule, either addressing the issue of exhaustion or filing an answer and reply.

1 With the agreement of Mr. Vasquez on behalf of the Warden, further 2 proceedings to discuss a budget and case management plan for Avila's 3 case were conducted confidentially. A separate order will be issued and 4 filed under seal establishing a budget for Phase I of the litigation. 5 6 Good cause appearing, 7 The Warden shall lodge the state record in this case by September 30, 8 2011. 9 A second case management conference will be held telephonically on November 7, 2011, at 3 p.m. Counsel for Avila shall initiate the conference call.

IT IS SO ORDERED.


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