Mendoza v. Cate

Filing 72

ORDER signed by Magistrate Judge Dale A. Drozd on 04/14/14 ordering respondent's 04/10/14 request to "vacate the briefing schedule pending the court's resolution of respondent's anticipated motion to dismiss 70 is granted. The evidentiary hearing previously scheduled for 4/21/14 is vacated. Petitioner's 04/14/ request "to maintain current court date as a status conference 71 is denied. The subpoena duces tecum issued on 04/09/14 to petitioner's former counsel is vacated. The clerk of the court is directed to serve this order on the U.S. Marshal. (cc: USM) (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARQUIMEDES MENDOZA,

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No. 2:09-cv-1710 MCE DAD P

Petitioner,
v.

ORDER

MATTHEW CATE,
Respondent.

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Petitioner is a former state prisoner proceeding through appointed counsel with a petition

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for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. An evidentiary hearing is currently

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scheduled in this matter on April 21, 2014.

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On April 10, 2014, respondent filed an unopposed request to vacate the scheduled April

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21, 2014 evidentiary hearing pending the resolution of a motion to dismiss to be filed by

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respondent within ten days. Good cause appearing, respondent’s request to vacate the evidentiary

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hearing will be granted.

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On April 14, 2014, petitioner’s appointed counsel filed an unopposed request to maintain

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the scheduled hearing date of April 21, 2014, but to hold a status conference in place of the

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scheduled evidentiary hearing. Petitioner also requests that the subpoena duces tecum previously

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issued to secure the attendance of petitioner’s former trial counsel at the evidentiary hearing be

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kept in place requiring that petitioner’s former counsel be required to appear at that date and time
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so that he could then be “ordered to return on a mutually convenient date” by the court.

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The court does not find good cause to issue the order sought by petitioner’s counsel. If

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respondent’s anticipated motion to dismiss is denied and the evidentiary hearing is rescheduled

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and if petitioner’s former trial counsel is served with a subpoena to attend that evidentiary

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hearing, and if petitioner’s former counsel despite having been served with such a subpoena fails

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to appear, the court will at that time exercise its authority to procure counsel’s appearance.

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Accordingly, petitioner’s request for an order replacing the April 21, 2014 evidentiary hearing

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with a status conference at which a witness would be required to be present will be denied.

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Accordingly, IT IS ORDERED that:

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1. Respondent’s April 10, 2014 request to “Vacate the Briefing Schedule Pending the

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Court’s Resolution of Respondent’s Anticipated Motion to Dismiss” (ECF No. 70) is granted;

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2. The evidentiary hearing previously scheduled for April 21, 2014 is vacated;

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3. Petitioner’s April 14, 2014 request “to Maintain Current Court Date as a Status

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Conference” (ECF No. 71) is denied;
4. The subpoena duces tecum issued on April 9, 2014 to petitioner’s former counsel is
vacated; and
5. The Clerk of Court is directed to serve this order on the U.S. Marshal.
Dated: April 14, 2014

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DAD:8
Mendoza1710.o

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