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Johnny Avila, Jr v. Michael Martel


November 8, 2011


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


Order Following Second Case Management Conference

This matter came on for a second Case Management Conference November 7, 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.

It was noted the Warden has lodged the state record, and counsel for Avila indicated they have obtained the record and known files from prior 1 counsel, and have begun reviewing them. The parties agree the statute of 2 limitations expires June 15, 2012, and Avila states he currently anticipates 3 filing his federal petition by that date. Avila has identified a potential 4 unexhausted claim, so it is possible he will file a second state habeas 5 petition concurrently with the federal petition. 6 Avila states he intends to file a proposed budget for Phase II by 7 November 18, 2011. A confidential hearing to discuss the Phase II budget 8 and case management plan will be set should one be found to be necessary. 9 The Guide to Case Management and Budgeting in Capital Habeas Cases, Eastern District of California, Fresno Division (hereafter the "Attorney Guide") was updated in September, 2011, to reflect the Court's new preference for petitioners to file a comprehensive petition that includes points and authorities, and for the Warden to file a corresponding comprehensive answer with points and authorities. See Attorney Guide, paragraph 52.*fn1 This requirement will not be imposed in this case, due to the size of the record and the fact that Avila's counsel are new to the case.

If Avila files an exhaustion petition with the California Supreme Court within the federal limitations period, and shows in a motion that he can meet the three-part test of Rhines v. Weber, 544 U.S. 269, 276 (2005), abeyance of federal proceedings will be considered. If abeyance is ordered under these circumstances, the filing of the answer by the Warden will be deferred until exhaustion proceedings are complete.

If Avila does not file a state exhaustion petition and move for abeyance of the federal proceedings, the Warden shall file an answer

1 within 180 days of the date the federal petition is filed. The Warden's 2 answer shall be presented without points and authorities, but shall 3 adequately frame the factual issues by answering each claim presented in 4 the petition, as is the standard in civil cases. In that unbriefed answer, the 5 Warden must refrain from stating a general denial or alleging boiler plate 6 arguments about the Teague bar and procedural default, although both of 7 those affirmative defenses should be pleaded (but not briefed). Avila shall 8 file a traverse responding to the Warden's allegations and legal authority 9 within 90 days of the filing of the answer. The Court thereafter will take up the matters of exhaustion and statute of limitations issues, as briefed by the parties. Phase II will close when the Court resolves the parties' respective contentions regarding exhaustion and state of limitations compliance. Concurrent with the issuance of that order, the Court will set a date for the Phase III CMC. If the Court determines certain claims in the petition are not exhausted, the necessity of abeyance will be considered.


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