Clifton Perry v. Acting Warden Michael Martel

Filing 43

ORDER Setting Phase II Briefing Schedule, signed by Chief Judge Anthony W. Ishii on 10/10/12. (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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KEVIN CHAPPELL, 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 SETTING PHASE II BRIEFING
SCHEDULE

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On June 27, 2012, the Court granted the motion of Petitioner Clifton Perry (“Perry”) for equitable

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tolling of the statute of limitations for 39 days, up to and including September 4, 2012. On that date,

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Perry timely filed his Petition (doc. 40), accompanied by a separate Memorandum of Points and

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Authorities (doc. 41). In his preliminary statement of the Petition, Perry alleges that each of the claims

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presented therein are exhausted. He notes, however, that Exhibits 1 through 4 accompanying the

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Petition were not previously presented to the California Supreme Court.

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In light of Perry’s allegation that the Petition is exhausted, the next step in the litigation process

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is for Respondent Kevin Chappell, as Acting Warden of San Quentin State Prison (the “Warden”) to file

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an Answer. In accordance with the Court’s procedures set forth in the Fresno Attorney Guide (available

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on the Court’s website), the Warden’s Answer shall address the allegations in the petition, consistent

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with Rule 5 of the Rules Governing § 2254 Cases, shall include legal points and authorities with the

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Answer, address all substantive and procedural affirmative defenses the Warden intends to pursue,

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including lack of exhaustion, failure to meet the statute of limitations, procedural default and the non-

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retroactivity bar. Given the length of the Petition (29 pages, alleging 14 substantive claims) and the
OSettingPhaseIIBriefingSch.Per.wpd

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length of the supporting points and authorities (160 pages, not including exhibits), the Court sets January

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18, 2013, by 4 p.m. as the due date for the briefed Answer. Perry then will have up to and including

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March 21, 2013, by 4 p.m. to file his Traverse. Thereafter, the Court will take of the matters of

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exhaustion and statute of limitations issues, as briefed by the parties.

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FOR GOOD CAUSE APPEARING
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On or before January 18, 2013, at 4 p.m., the Warden shall his Answer, accompanied by points

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and authorities, in which he shall frame the factual issues and address the merits of the claims

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pleaded in the Petition in addition to setting forth his substantive and procedural affirmative

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defenses.

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2.

On or before March 21, 2013, at 4 p.m., Perry shall file his Traverse to the Answer.

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3.

Any further briefing on issues raised in the pleadings will be requested by the Court.

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IT IS SO ORDERED.

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Dated:

October 10, 2012
/s/ Anthony W. Ishii
Anthony W. Ishii
United States District Judge

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OSettingPhaseIIBriefingSch.Per.wpd

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