Cornwell v. Ylst

Filing 133

ORDER signed by Magistrate Judge Kendall J. Newman on 03/25/21 ORDERING the procedural default challenges, limited as set forth above, shall be addressed in post-discovery or evidentiary hearing briefing when the parties brief the merits of the rema ining claims. Petitioner shall file his motion for discovery as to all sub-claims of Claim 3, and Claim 34 within 90 days from the date of this order. Respondents opposition shall be filed 60 days thereafter. Petitioners reply shall be filed thirty d ays after the opposition is filed. Respondent shall file a motion for order to obtain trial counsels defense file within 60 days from the date of this order. Petitioners opposition shall be filed thirty days thereafter; respondents reply, if any, shall be filed thirty days after the opposition is filed. 45 days following completion of the discovery process involving all sub-claims of Claims 3, and Claim 34, petitioner shall file a motion for evidentiary hearing.(Plummer, M)

Case 2:06-cv-00705-TLN-KJN Document 133 Filed 03/25/21 Page 1 of 3
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GLENN CORNWELL, Jr.,

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Petitioner,

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No. 2:06-cv-0705 TLN KJN DP
DEATH PENALTY CASE

v.
WARDEN, SAN QUENTIN STATE
PRISON,

ORDER

Respondent.

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Petitioner is a state prisoner under sentence of death. On March 19, 2019, the district

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court adopted the findings and recommendations on the application of 28 U.S.C. § 2254(d) to

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claims in the amended petition, and referred this matter back to the undersigned for further

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proceedings. Pursuant to the undersigned’s order, the parties filed a joint status report. (ECF No.

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131.)

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1. Procedural Default Challenges

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According to respondent, the procedural default challenges are limited to Claim 3(e),

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whether trial counsel unreasonably failed to rebut the prosecutor’s argument that because

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petitioner was not insane at the time of the 1983 and 1992 crimes, there was no mitigation; and

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Claim 34, ineffective assistance of state habeas counsel.1 Respondent proposed that the

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As stipulated by the parties (ECF No. 82), the court deferred ruling on the procedural default
aspects of respondent’s May 11 motion to dismiss until resolution of the 28 U.S.C. § 2254 issues.
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Case 2:06-cv-00705-TLN-KJN Document 133 Filed 03/25/21 Page 2 of 3
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procedural bars be addressed in post-discovery or evidentiary hearing briefing when the parties

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brief the merits of the remaining claims. Petitioner raised no objection. Good cause appearing,

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the court will so order.

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2. Discovery

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Petitioner will seek discovery as to all sub-claims of Claim 3,2 and Claim 34. Due to other

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death penalty litigation demands, petitioner requests an additional 90 days in which to file a

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motion for discovery. While respondent does not oppose such request, respondent may oppose

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the discovery motion. Petitioner’s request is granted.
Respondent anticipates seeking an order to obtain trial counsel’s defense file. Petitioner

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did not address whether he would oppose such request.

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Good cause appearing, petitioner shall file his motion for discovery as to all sub-claims of

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Claim 3, and Claim 34 within ninety days from the date of this order. Respondent’s opposition

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shall be filed sixty days thereafter. Petitioner’s reply shall be filed thirty days after the opposition

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is filed.
Respondent shall file a motion for order to obtain trial counsel’s defense file within sixty

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days from the date of this order. Petitioner’s opposition shall be filed thirty days thereafter;

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respondent’s reply, if any, shall be filed thirty days after the opposition is filed.

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3. Evidentiary Hearing

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Petitioner will seek an evidentiary hearing on Claim 3, which motion is contemplated to

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be filed after the completion of the discovery process. Petitioner proposes a deadline of 45 days

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after such completion in which to file the motion.

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Upon the completion of the discovery process involving all sub-claims of Claims 3, and
Claim 34, petitioner shall have 45 days in which to file a motion for evidentiary hearing.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The procedural default challenges, limited as set forth above, shall be addressed in

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(ECF No. 85 at 2.)
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Claim 3 relates to allegations of ineffective assistance of counsel at the penalty phase. See ECF
No. 52 at 143-260 (sub-claims 3(a) through 3(h).
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Case 2:06-cv-00705-TLN-KJN Document 133 Filed 03/25/21 Page 3 of 3
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post-discovery or evidentiary hearing briefing when the parties brief the merits of the remaining

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claims.

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2. Petitioner shall file his motion for discovery as to all sub-claims of Claim 3, and Claim

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34 within ninety days from the date of this order. Respondent’s opposition shall be filed sixty

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days thereafter. Petitioner’s reply shall be filed thirty days after the opposition is filed.

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3. Respondent shall file a motion for order to obtain trial counsel’s defense file within

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sixty days from the date of this order. Petitioner’s opposition shall be filed thirty days thereafter;

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respondent’s reply, if any, shall be filed thirty days after the opposition is filed.

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4. Forty-five days following completion of the discovery process involving all sub-claims

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of Claims 3, and Claim 34, petitioner shall file a motion for evidentiary hearing.

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Dated: March 25, 2021

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