Clifton Perry v. Acting Warden Michael Martel
Filing
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ORDER Following Phase I Case Management Conference signed by Chief Judge Anthony W. Ishii on 11/07/2011. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CLIFTON PERRY,
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Petitioner,
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vs.
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MICHAEL MARTEL, as Acting Warden of )
California State Prison at San Quentin,
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Respondent.
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_______________________________________ )
Case No. 1:11-cv-01367 AWI
DEATH PENALTY CASE
ORDER FOLLOWING PHASE I CASE
MANAGEMENT CONFERENCE
DATE:
November 3, 2011
TIME:
9:00 a.m.
COURTROOM TWO
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This matter came on for a telephonic Phase I Case Management Conference (“CMC”) on
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November 3, 2011 at 9:15 a.m. in the above entitled Court, the Honorable Anthony W. Ishii, presiding.
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Petitioner Clifton Perry (“Perry”) was represented by CJA panel attorney D. Jay Ritt and Respondent
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Michael Martel, as Acting Warden of California State Prison at San Quentin, (the “Warden”) was
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represented by Deputy Attorney General Jennevee H. DeGuzman. Perry’s other appointed attorney, CJA
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panel attorney, Verna Wefald, was unable to be present for the CMC.
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The parties and the Court discussed the manner in which the federal petition would be presented,
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that is, with or without points and authorities, the statute of limitations, the time within which the
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Warden will be able to lodge the state record, and the duration of this phase of the litigation. Following
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the discussion of these issues, the Court excused Ms. DeGuzman so the issue of Perry’s Phase I case
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management plan and budget could be discussed confidentially. A separate order is filed under seal
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concurrently herewith establishing a budget for Phase I.
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With respect to the non-confidential matters, the parties agree that the limitations period in this
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case extends to July 27, 2012. Ms. DeGuzman represents that the Warden will lodge the state record
11dp1367.OFollPhaseICMC.Per.wpd
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by November 18, 2011. While Perry requested the option of filing the federal petition without points
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and authorities, this matter has not yet been settled pending further comment from the Warden. In the
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event the petition is unbriefed, the answer must adequately frame the factual issues by answering the
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petition paragraph by paragraph, as is the standard in civil cases. In that unbriefed answer, the Warden
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must refrain from stating a general denial or alleging boiler plate arguments about the Teague bar and
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procedural default, although both of those affirmative defenses should be pleaded (not briefed). The
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Warden is directed to file a statement regarding his ability to file an unbriefed answer consistent with
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these guidelines no later than two calendar weeks following the filing of this order.
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The Court has set November 30, 2011 as the termination of Phase I. In this early stage of the
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proceedings where Perry’s attorneys both are new to the case, much of the work anticipated from his
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litigation team will be to become familiar with the pleadings, files, and record.
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November, Perry’s attorneys will have a more concrete concept of what the record contains so the Phase
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II case management plan and budget will more accurately predict the types of services that will be
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required to get the federal petition on file within the limitations period.
By the end of
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The Court will conduct a telephonic Phase II CMC on Friday, December 9, 2011 at 9:00 a.m.
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with Perry responsible for initiating the call. Perry shall file his Phase II case management plan and
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budget no later than December 1, 2011. By that time, the Court will have determined whether the
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federal petition will be filed with or without points and authorities. Whether the petition is or is not
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briefed, Phase II will come to a close and Phase III will commence after the Warden has filed his answer
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and the preliminary issues of exhaustion and the statute of limitations are settled. The Court will not
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address the procedural defenses of Teague bar and procedural default until merits of the petition are
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considered in Phase III.
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IT IS SO ORDERED.
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Dated:
November 7, 2011
/s/ Anthony W. Ishii
Anthony W. Ishii
United States District Judge
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11dp1367.OFollPhaseICMC.Per.wpd
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