Clifton Perry v. Acting Warden Michael Martel

Filing 24

ORDER re: Phase II Case Management, signed by Chief Judge Anthony W. Ishii on 12/21/11. (Verduzco, M)

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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 San )
Quentin State Prison,
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Respondent.
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_______________________________________ )

Case No. 1:11-cv-01367 AWI
DEATH PENALTY CASE
ORDER RE: PHASE II CASE
MANAGEMENT

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Phase II in this matter, which commenced on December 1, 2011will proceed through the filing

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of the briefed petition, the briefed answer and the traverse. Petitioner Clifton Perry (“Perry”) has advised

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the Court as well as counsel for Respondent Michael Martel, as Acting Warden of San Quentin State

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Prison (the “Warden”) he may move for equitable tolling of the statute limitations, file a protective

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petition, file a successive petition in the California Supreme Court to exhaust additional claims, and

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move for abeyance during this phase. If and when these possibilities occur, appropriate motions will

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be filed and hearings conducted. Should there be an exhaustion petition filed in the California Supreme

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Court and federal proceedings in Phase II are held in abeyance, the only activity the Court will

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financially authorize is Perry’s filing of status reports. In that event, once state exhaustion proceedings

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terminate and should the California Supreme Court rules adversely to Perry, Phase II will continue, with

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the filing of a fully briefed answer.

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As more fully set forth in the November 28, 2011 Case Management Order Regarding Pleadings,

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the answer shall frame the factual issues and address the merits of the claims pleaded in the petition in

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additional to raising any procedural affirmative defenses.
11dp1367.OFollPhaseIICMC.Per.wpd

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Following the answer, Perry shall file his

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traverse. It is at this point in Phase II that the Court will address the issue of exhaustion and the statute

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of limitations. Neither procedural default nor the Teague non-retroactivity bar will be addressed until

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Phase III.

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Although Perry may need to file an amended budget, depending upon what his early investigation

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efforts disclose, the Court foresees no occasion to conduct a case management conference for this

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litigation phase in the future. Should a case management conference become necessary, one will be

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scheduled.

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IT IS SO ORDERED.

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Dated:

December 21, 2011
/s/ Anthony W. Ishii
Anthony W. Ishii
United States District Judge

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11dp1367.OFollPhaseIICMC.Per.wpd

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