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John A. Almeda v. M. Mcdonald

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 6, 2012

JOHN A. ALMEDA, PETITIONER,
v.
M. MCDONALD, RESPONDENT.

The opinion of the court was delivered by: Timothy J Bommerunited States Magistrate Judge

ORDER

Petitioner is proceeding with counsel and has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The undersigned construed Petitioner's claims as follows:

First, Petitioner argues his due process rights and his right to present a defense were violated when "the trial court ruled that his alibi witness was unavailable and proceeded with the trial despite defense counsel's motions for continuance and mistrial." (Pet'r's Am. Pet. at p. 15.) Second, Petitioner asserts his right to confront and cross examine witnesses was violated when the trial court allowed "the prosecutor to elicit prejudicial information from a witness in front of the jury after she expressly refused to testify and had previously been held in contempt by the court." (Id. at p. 26, 29.) Third, Petitioner contends the cumulative errors of the first two grounds violated his right to due process and a fair trial. (Id. at p. 33.)

(Dkt. No. 30 at p. 7.) On December 8, 2010, the undersigned recommended that the habeas petition be denied. Petitioner filed objections to the findings and recommendations. On September 30, 2011, the District Judge adopted the findings and recommendations as to Petitioner's second and third claims. With respect to Petitioner's first claim, the District Judge determined that Petitioner's first claim included an argument that the state court "denied [Petitioner] his right to compulsory process by discharging the bench warrant even though the witness was not truly unavailable." (Dkt. No. 33 at p. 2.) The District Judge found that the December 8, 2010 findings and recommendations had not addressed this argument and referred the case back to the undersigned to address this issue.

Accordingly, IT IS HEREBY ORDERED that:

1. The parties shall have until February 28, 2012 to file a supplemental brief which addresses the issue referred back to the undersigned by the District Judge in the September 30, 2011 order; and

2. The parties shall have until March 13, 2012 to file a reply to the opposing party's supplemental brief should they deem such a reply necessary.

20120206

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