Espinoza v. Ornoski

Filing 329

ORDER signed by Magistrate Judge Deborah Barnes on 12/04/2023 DIRECTING the parties to file, within 30 days, a joint statement in which they either propose a neutral mental health expert to evaluate petitioner's competence for purposes of his counsel's motion or describe their differences in failing to agree on such an expert. (Spichka, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTONIO ESPINOZA,

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No. 2:94-cv-1665 KJM DB P

Petitioner,

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v.

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ORDER

WARDEN,

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Respondent.

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Petitioner is a state prisoner proceeding through counsel with a petition for a writ of

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habeas corpus under 28 U.S.C. §2254. Pending before the court is petitioner’s counsel’s motion

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to have petitioner declared incompetent and for the appointment of a guardian ad litem. (ECF

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No. 309.) This court previously determined that the first step in considering counsel’s motion is a

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hearing to provide petitioner notice of the motion. (See ECF No. 320.)
On December 4, 2023, the undersigned held that notice hearing at the California Medical

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Facility where petitioner is currently incarcerated. Petitioner and his counsel, Lissa Gardner,

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appeared.1 The undersigned informed petitioner of his counsel’s motion, questioned him about

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his understanding of the motion, and answered petitioner’s questions.

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////

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Respondent informed the court previously that they take no position on petitioner’s counsel’s
motion and respondent’s counsel did not participate in the hearing.
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This court finds the appropriate next step in considering counsel’s motion is the

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appointment of a neutral mental health expert to evaluate petitioner’s present competence under

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Federal Rule of Civil Procedure 17. To that end, counsel for the parties shall meet and confer to

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attempt to identify an appropriate neutral mental health expert to propose to the court.

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Accordingly, IT IS HEREBY ORDERED that on or before December 29, 2023, the

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parties shall file a joint statement in which they either propose a neutral mental health expert to

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evaluate petitioner’s competence for purposes of his counsel’s motion or describe their

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differences in failing to agree on such an expert.

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Dated: December 4, 2023

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DB:9
DB prisoner inbox/capital/Espinoza.propose expert

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