Vieira v. Ylst
Filing
92
ORDER granting 91 Third Request by Respondent's to modify briefing schedule for Phase III of the litigation signed by Judge Oliver W. Wanger on 6/1/2011. (Lundstrom, T)
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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
THIRD 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 set July 22, 2010 and last modified May 10, 2011
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(doc. 90). The proposed new schedule extends briefing due dates by one month. The Warden’s counsel
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reports that Petitioner 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 July 5, 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 October 3, 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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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.
05dp1492.OGrantRespReq2ModPhaseIIIBriefingSch.Vie.wpd
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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 November 7, 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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The Warden shall file his opposition to the evidentiary hearing motion on or before December
5, 2011.
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6.
Vieira shall file his reply to the opposition on or before January 11, 2012.
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SO ORDERED.
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Date:
June 1, 2011
/s/ Oliver W. Wanger
Oliver W. Wanger
United States District Judge
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05dp1492.OGrantRespReq2ModPhaseIIIBriefingSch.Vie.wpd
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