Vieira v. Ylst

Filing 95

ORDER Revised Briefing Schedule, signed by Judge Oliver W. Wanger on 7/8/2011. (Kusamura, W)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD JOHN VIEIRA,

Case No. 1:05-cv-01492 OWW (DP)

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Petitioner, ORDER REVISED BRIEFING
SCHEDULE

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v.
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CAPITAL CASE
MICHAEL MARTEL, ACTING
WARDEN,

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

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has submitted a request to modify the scheduling order issued July 22, 2010, and last modified

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June 1, 2011 (doc. 92). The Warden’s counsel reports that counsel for Petitioner Richard J.

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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

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be filed on or before August 4, 2011. The Warden shall defer his discussion of the application of

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Cullen v. Pinholster, 131 S. Ct. 1388 (2011), until briefing on Petitioner Vieira’s anticipated

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motion for an evidentiary hearing.

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2. Vieira shall file a reply brief on or before November 2, 2011.

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Order (1:05-cv-01492 OWW (DP))

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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.

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

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Governing § 2254 Cases on or before December 7, 2011. The evidentiary hearing motion shall

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

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

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

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

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of the 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. The Warden shall file his opposition to the evidentiary hearing motion on or before
January 4, 2012.
6. Vieira shall file his reply to the opposition on or before February 10, 2012.

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IT IS SO ORDERED.

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Dated: July 8, 2011 __________________________/s/ OLIVER W. WANGER_
_____________________________
United States District Court Judge

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Order (1:05-cv-01492 OWW (DP))

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