Clifton Perry v. Acting Warden Michael Martel
Filing
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ORDER STIKING the Warden's 65 Notice of Lodging State Record Documents as Premature and Returning Paper Documents to both parties, signed by District Judge Anthony W. Ishii on 11/19/13. (Documents returned to filers as ordered herein)(Martin-Gill, S)
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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,
v.
KEVIN CHAPPELL, Warden of California
State Prison at San Quentin,
Respondent.
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Case No.: 1:11-cv-01367 AWI
ORDER STRIKING THE WARDEN’S NOTICE
OF LODGING STATE RECORD DOCUMENTS
AS PREMATURE AND RETURNING PAPER
DOCUMENTS TO BOTH PARTIES
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This matter is before the Court following delivery of courtesy copies of recently filed state
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court pleadings and documents by Petitioner Clifton (“Perry”) as well as the filing of a Notice Lodging
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Document in Paper by Respondent Kevin Chappell, Warden of California State Prison at San Quentin
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(the “Warden”) and the delivery of some of the same pleadings and documents previously provided by
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Perry. The state pleadings and related documents were received from Perry by the Court on October
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26, 2013.
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documents referred to in the lodgment notice were received on November 19, 2013.
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proceedings in this action were held in abeyance during the pendency of state exhaustion proceedings
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by order dated July 18, 2013 (doc. 58).
The Warden’s lodgment notice was filed on November 18, 2013 (doc. 65) and the
Federal
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The state action which is the subject of the parties’ respective efforts was filed in the California
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Supreme Court on October 25, 2013, case number S214222. On November 5, 2013, the state court
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ordered the People of the State of California to file an informal response to the petition. The Warden’s
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lodgment notice did not include the state court’s directive for the People to file an informal response.
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To avoid unnecessary duplication of effort, the Court does not wish to receive state court pleadings
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and documents in a piecemeal fashion every time a new document is filed in the state proceedings,
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especially since the matter is being held in abeyance.
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Local Rule 191(h)(1) provides that the Respondent (that is, the Warden) shall file a notice of
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lodging documents that are part of the state court record. The Warden has complied with this rule,
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both during the early months of the case and recently with the lodgment of documents from the new
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state case. The rule was written with the intent of requiring the lodgment of the extant state record
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when a federal capital habeas case is commenced, not in a situation, as is presented here, where
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abeyance of federal proceedings has been ordered so state remedies can be exhausted.
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The Court hereby suspends the application of Rule 191(h)(1) during abeyance of this action.
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Once the case returns to federal court (if the case returns to federal court), the Warden shall comply
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with the rule by filing an amended lodgment notice and providing the Court with relevant state
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records. Until that time, the Court is directing the Clerk to strike the Warden’s lodgment notice (doc.
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65) and return all paper documents to the parties.
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IT IS SO ORDERED.
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Dated: November 19 2013
/s/ Anthony W. Ishii
Anthony W. Ishii
United States District Judge
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