Vieira v. Ylst

Filing 89

ORDER GRANTING 88 Request to Modify Briefing Schedule for Phase III of the Litigation, signed by Judge Oliver W. Wanger on 05/06/2011. (Martin, S)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD J. VIEIRA,
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Petitioner,
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vs.
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Michael Martel, as Acting Warden of San )
Quentin State Prison,*
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Respondent.
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Case No. 1:05-cv-1492-OWW
DEATH PENALTY CASE
ORDER GRANTING RESPONDENT’S
SECOND REQUEST TO MODIFY
BRIEFING SCHEDULE FOR PHASE III OF
THE LITIGATION

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Respondent Michael Martel, as Acting Warden of San Quentin State Prison (the “Warden”) has

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submitted a request to modify the briefing schedule issued on March 4, 2011 (doc. 87). The proposed

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new schedule extends briefing due dates by one month. The Warden’s counsel reports that Petitioner

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Richard J. Vieira (“Vieira”) has no objection to the requested modification.

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GOOD CAUSE APPEARING,

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1.

The Warden’s memorandum of points and authorities in opposition to the petition shall be filed

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on or before June 2, 2011. The Warden shall defer his discussion of the application of Cullen

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v. Pinholster, 131 S. Ct. 1388 (2011), until briefing on Vieira’s anticipated motion for an

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evidentiary hearing.

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2.

Vieira shall file a reply brief on or before August 31, 2011.

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3.

The parties are encouraged to meet and confer about the need to conduct discovery. It is

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anticipated that motions for formal discovery pursuant to Rule 6 of the Rules Governing § 2254

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Michael Martel, as Acting W arden of San Quentin State Prison, is substituted as the Respondent in this case pursuant to
Federal Rule of Civil Procedure 25(d).
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05dp1492.OGrantRespReq2ModPhaseIIIBriefingSch.Vie.wpd

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Cases or record expansion pursuant to Rule 7 of the Rules Governing § 2254 Cases will be

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presented and resolved without altering the schedule for briefing the petition.

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4.

Vieira shall file his motion for an evidentiary hearing pursuant to Rule 8 of the Rules Governing

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§ 2254 Cases on or before October 6, 2011. The evidentiary motion shall be limited to

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identification of: (a) the claims for which a hearing is sought; (b) an offer of proof as to the

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evidence sought to be presented; (c) a brief statement of the legal grounds for the evidentiary

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hearing; and (d) an explanation of diligence exercised in state court to develop the claims before

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the California Supreme Court (see 28 U.S.C. § 2254(e)(2)). In light of the briefing of the

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petition, legal analysis and citation of authorities in support of claims for which a hearing is

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sought will not be necessary. The exception to presentation of legal analysis and citation to

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authority involves briefing the application of Pinholster to Vieira’s entitlement to further

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evidentiary development.

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5.

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The Warden shall file his opposition to the evidentiary hearing motion on or before November
7, 2011.

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6.

Vieira shall file his reply to the opposition on or before November 7, 2011.

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SO ORDERED.

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Date:

May 6, 2011
/s/ Oliver W. Wanger
Oliver W. Wanger
United States District Judge

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