IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 25, 2012
JOVAN'Z SMITH, PETITIONER,
KEN CLARK, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
A joint scheduling statement in this matter was filed on January 18, 2012, pursuant to the court's order filed December 20, 2011. After reviewing the joint statement, the court issues the following ORDERS:
1. Petitioner is granted until March 5, 2012, to review the transcripts in this case; on or before March 5, 2012, petitioner must inform the court whether he will elect to stand on the original petition and file a supplemental memorandum of points and authorities OR whether he will file an amended petition adding unexhausted claims along with a motion to hold this matter in abeyance.
2. Should petitioner choose to stand on the original petition, petitioner's counsel must file any supplemental memorandum of points and authorities by April 5, 2012.*fn1
3. If petitioner proceeds pursuant to number 2 above, respondent must file a responsive pleading within 30 days thereafter, and petitioner must file his opposition or his optional reply (traverse), as appropriate, 21 days following the response; respondent's reply, if any, if a dispositive motion was filed, is thereafter due within 14 days of service of an opposition.
4. Should petitioner identify unexhausted claims which petitioner will seek to exhaust, petitioner shall file an amended petition on or before April 5, 2012, setting forth all claims, exhausted and unexhausted, and shall demonstrate good cause for having failed to exhaust state court remedies as to any claim which petitioner would seek to exhaust. Petitioner shall move the court to hold the proceedings in abeyance pending exhaustion of state court remedies as to the unexhausted claims on or before April 5, 2012; if a stay is ultimately granted, petitioner must immediately pursue state court exhaustion, that is, within 30 days of the granting of a stay, and, upon said exhaustion in state court, within 30 days, proceed upon the amended petition in federal court.
5. Respondent must file any response to any motion for a stay of proceedings by petitioner to pursue unexhausted claims within 30 days of the filing of a motion to stay, any reply to any opposition to such a motion must be filed within 14 days of service of the opposition.
6. Although the parties do not anticipate the need for discovery at this point, and assuming that a motion to stay proceedings is not made, should petitioner make a motion for leave to conduct discovery under the Rules Governing Section 2254 Cases, Rule 6(a), petitioner must do so within 60 days; if respondent opposes any such motion respondent must do so within 30 days thereafter; petitioner's reply, if any, must be filed within 14 days of any opposition by respondent.
7. While at this time petitioner does not anticipate the need for an evidentiary hearing, should petitioner ultimately elect to move for an evidentiary hearing, petitioner must do so at the earliest appropriate opportunity; should petitioner file a motion for an evidentiary hearing, respondent must file any opposition within 30 days of service of the motion, and petitioner must file any reply within 14 days of service of any opposition.