Holmes v. Miller

Filing 68

ORDER signed by Magistrate Judge Kendall J. Newman on 03/04/16 ordering within 2 weeks from the date of this order, the parties shall file a joint stipulation, not to exceed 7 pages, setting forth the current status of discovery regarding the produc tion of documents from the file of petitioner's trial counsel. The 3/24/16 hearing date on petitioner's motion to schedule status conference 64 is vacated. The 3/31/16 hearing date on respondent's motion for discovery 66 is vacated. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JESSICA HOLMES,

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Petitioner,

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No. 2:11-cv-2710 JKS KJN P (TEMP)

v.
DEBORAH K. JOHNSON, 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. An evidentiary hearing is set in this matter for May 2-3,

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2016, on petitioner’s claim that her trial counsel rendered ineffective assistance during the plea

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bargain process.
By order dated February 9, 2016, the undersigned granted petitioner’s motion for

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discovery of the trial file of petitioner’s trial counsel and any notes relating to trial counsel’s

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advice to petitioner regarding whether to accept the prosecution’s plea offer. The parties were

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advised that if a dispute arose over whether the entire file had been turned over to petitioner they

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could, after meeting and conferring, file a motion in this court to resolve the dispute. The parties

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were also advised that they must be prepared to specify in any such motion the documents that

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had not been turned over in discovery and the reasons those documents had not been produced.

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On February 26, 2016, petitioner filed and set on the court’s calendar a motion to schedule

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a status conference for a date “sometime prior to the evidentiary hearing presently scheduled.”

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(ECF No. 64, at 1.) Petitioner explains that the “ostensible purpose” of this status conference is

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to determine whether she has been provided with her trial counsel’s entire file. (Id. at 2.) On

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February 29, 2016, respondent filed and set on the court’s calendar a motion for discovery. (ECF

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No. 66.) Therein, respondent requests an order requiring petitioner to disclose no later than 21

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days prior to the start of the evidentiary hearing all documents contained in trial counsel’s file that

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are relevant to petitioner’s claim of ineffective assistance of counsel. Respondent explains that

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the parties have “exchanged multiple emails” on this subject and are “coming closer to an

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agreement regarding discovery of the relevant contents of trial counsel’s file.” (Id. at 1, 5.)

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Respondent also states that petitioner refuses to turn over this discovery until seven days before

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the evidentiary hearing. (Id. at 5.)

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Good cause appearing, the parties will be ordered to file a joint stipulation, not to exceed 7

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pages, setting forth the current status of discovery regarding the production of trial counsel’s file,

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including a brief description of the documents that have not been turned over in discovery, if any,

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and the reasons those documents have not been produced. The parties shall also set forth their

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position on the timing of disclosure of all relevant discovery. The hearing dates scheduled by the

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parties on their respective motions will be taken off calendar. If the court determines that a

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hearing is necessary after reviewing the joint statement, it will set a status conference sua sponte.

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The court will sign any protective order agreed upon by the parties with respect to disclosure of

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documents subject to the attorney-client privilege.

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Accordingly, IT IS ORDERED that:

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1. Within two weeks from the date of this order, the parties shall file a joint stipulation,

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not to exceed 7 pages, setting forth the current status of discovery regarding the production of

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documents from the file of petitioner’s trial counsel. The stipulation shall include a brief

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description of the documents that have not been turned over in discovery, the reasons those

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documents have not been produced, and the parties’ position on the timing of disclosure of all

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relevant discovery.
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2. The March 24, 2016 hearing date on Petitioner’s “Motion to Schedule Status
Conference” (ECF No. 64) is vacated; and
3. The March 31, 2016 hearing date on respondent’s motion for discovery (ECF No. 66)

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is vacated.

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Dated: March 4, 2016

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Holmes2710.o

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