Zapata v. Frauenheim

Filing 23

ORDER LIFTING STAY of Case; ORDER GRANTING 20 Motion to Amend; ORDER to RESPOND and SETTING Briefing Schedule signed by Magistrate Judge Stanley A. Boone on 10/10/2017. Clerk to serve a copy of this order, a copy of the Petition and the Order re Consent on the Attorney General.(Sant Agata, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 RAMON PEREZ ZAPATA, 10 Case No. 1:16-cv-01260-SAB-HC Petitioner, 11 ORDER LIFTING STAY OF CASE v. 12 ORDER GRANTING MOTION TO AMEND S. FRAUENHEIM, 13 ORDER TO RESPOND AND SETTING BRIEFING SCHEDULE Respondent. 14 (ECF Nos. 14, 20) 15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 16 17 pursuant to 28 U.S.C. § 2254. In 2013, Petitioner was convicted in the Madera County Superior Court of various sex 18 19 offenses and was sentenced to an imprisonment term of thirty-nine years to life. (ECF No. 21 at 1 20 3). The California Court of Appeal, Fifth Appellate District affirmed the judgment, and the 21 California Supreme Court denied the petition for review on January 13, 2016. (Id. at 4). On August 25, 2016, Petitioner filed a federal petition for writ of habeas corpus, alleging 22 23 that: (1) the trial court failed to undertake the requisite Marsden inquiry; (2) the trial court 24 erroneously restricted cross-examination; and (3) Petitioner was convicted on the basis of an 25 unlawful confession. On September 7, 2016, the Court ordered Petitioner to show cause why the 26 petition should not be dismissed for failure to exhaust state court remedies for claims 2 and 3. 27 (ECF No. 6). 28 1 Page numbers refer to the ECF page numbers stamped at the top of the page. 1 1 In response to the order to show cause, Petitioner filed a motion to stay. (ECF No. 8). The 2 Court granted Petitioner’s motion in part and stayed this matter pursuant to Kelly v. Small, 315 3 F.3d 1063 (9th Cir. 2002). (ECF Nos. 9, 14). Petitioner then filed state habeas petitions in the 4 Madera County Superior Court, the California Court of Appeal, and the California Supreme 5 Court, all of which were denied. (ECF No. 20 at 2–3). 6 On October 2, 2017, the Court received the instant motion to amend, wherein Petitioner 7 moves to amend the petition to include six newly exhausted claims. (ECF No. 20 at 4–6). Based 8 on the record before the Court, it appears that these newly exhausted claims are timely. 9 Accordingly, the Court will grant Petitioner’s motion to amend. 10 Accordingly, the Court HEREBY ORDERS: 11 1. The stay imposed in this matter on October 25, 2016 (ECF No. 14) is LIFTED. 12 2. Petitioner’s motion to amend (ECF No. 20) is GRANTED. 13 3. Within SIXTY (60) days of the date of service of this order, Respondent SHALL 14 FILE a RESPONSE to the Second Amended Petition (ECF No. 21). See Rule 4, 15 Rules Governing Section 2254 Cases; Cluchette v. Rushen, 770 F.2d 1469, 1473– 16 74 (9th Cir. 1985) (court has discretion to fix time for filing a response). A 17 Response can be made by filing one of the following: 18 A. 19 Petition. Any argument by Respondent that Petitioner has procedurally 20 defaulted a claim SHALL BE MADE in the ANSWER, but must also 21 address the merits of the claim asserted. 22 B. 23 4. AN ANSWER addressing the merits of the Second Amended A MOTION TO DISMISS the Second Amended Petition. Within SIXTY (60) days of the date of service of this order, Respondent SHALL 24 FILE any and all transcripts or other documents necessary for the resolution of the 25 issues presented in the Second Amended Petition. See Rule 5(c), Rules Governing 26 Section 2254 Cases. 27 28 4. If Respondent files an Answer to the Second Amended Petition, Petitioner MAY FILE a Traverse within THIRTY (30) days of the date Respondent’s Answer is 2 1 filed with the Court. If no Traverse is filed, the Second Amended Petition and 2 Answer are deemed submitted at the expiration of the thirty days. 5. 3 If Respondent files a Motion to Dismiss, Petitioner SHALL FILE an Opposition 4 or Statement of Non-Opposition within TWENTY-ONE (21) days of the date 5 Respondent’s Motion is filed with the Court. Any Reply to an Opposition to the 6 Motion to Dismiss SHALL be filed within SEVEN (7) days after the Opposition 7 is served. The Motion to Dismiss will be deemed submitted TWENTY-EIGHT 8 (28) days after the service of the Motion or when the Reply is filed, whichever 9 comes first. See Local Rule 230(l). All motions shall be submitted on the record and briefs filed without oral argument unless 10 11 otherwise ordered by the Court. Local Rule 230(l). Extensions of time will only be granted upon 12 a showing of good cause. All provisions of Local Rule 110 are applicable to this order. 13 14 IT IS SO ORDERED. 15 Dated: October 10, 2017 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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