Smith v. McDonald

Filing 47

ORDER signed by Magistrate Judge Gregory G. Hollows on 1/4/2012 ORDERING that within 21 days, both parties shall file a simultaneous briefing regarding Gonzalez and its application to the instant case.(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHARLES RAY SMITH,

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Petitioner,

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vs.

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No. CIV S-09-2967 MCE GGH P

M. MCDONALD,

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ORDER

Respondent.
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Petitioner is a state prisoner proceeding with appointed counsel with a petition for

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 13, 2011, a hearing was held

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before the undersigned regarding petitioner’s motion for an evidentiary hearing. Further briefing

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was ordered in light of the Supreme Court decision in Cullen v. Pinholster, 131 S.Ct. 1388

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(2011), and both parties have timely filed briefing. On December 7, 2011, the Ninth Circuit

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issued an opinion in Gonzalez v. Wong, 2011 WL 6061514 (9th Cir. Dec. 7, 2011), that

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discussed Pinholster and ultimately ordered the district court to stay the case and remand a claim

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back to state court for exhaustion after additional information was found in discovery during the

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federal proceedings.

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Within 21 days both parties shall file simultaneous briefing regarding Gonzalez

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and its application to the instant case. The parties should also specifically address if the Cronic1

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claim raised by petitioner in the motion for an evidentiary hearing is sufficiently distinct and new

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from the ineffective assistance of counsel claim in the petition, that the claim must go back to

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state court to be exhausted. The undersigned notes that while respondent filed briefing regarding

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Pinholster, the briefing did not address any of the facts or specific issues of the instant case.

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With respect to this exhaustion briefing, respondent should address the facts of the instant case

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and the issues raised by petitioner.

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IT IS SO ORDERED.
Dated: January 4, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
ggh:ab
smit2967.ord3

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United States v. Cronic, 466 U.S. 648 (2002).
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