Martinez v. Director of CDCR

Filing 86

ORDER signed by Senior Judge James K. Singleton on 6/5/2017 ORDERING the petitioner to file a Motion to Vacate Judgment pursuant to F.R.Cv.P. 60(b) by 7/5/2017; ORDERING the respondent to file an opposition to said motion by 8/4/2017; ORDERING the petitioner to file any reply by 8/18/2017. (cc: Ninth Circuit Court of Appeals) (Michel, G.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
DEREK MARTINEZ,
No. 2:12-cv-02273-JKS
Petitioner,
vs.

ORDER
[Re: Briefing Schedule upon Limited Remand]

SCOTT FRAUENHEIM, Warden,
Pleasant Valley State Prison,
Respondent.

This Court denied Derek Martinez, a state prisoner proceeding pro se, habeas relief and a
certificate of appealability on May 12, 2015. Docket Nos. 70, 71. Martinez timely filed a notice
of appeal, Docket No. 72, and the Ninth Circuit Court of Appeals granted a certificate of
appealability with respect to: 1) whether the prosecutor committed misconduct manipulating the
witness; and 2) whether Martinez can demonstrate, in light of new evidence, that he is actually
innocent of the offense, Docket No. 12 (Ninth Cir. Case No. 15-16082). On appeal, Martinez moved
in September 2016 to supplement the record with DNA testing and reporting that resulted from state
court litigation conducted from prior to the filing of his federal Petition through 2016. Docket No.
30 (Ninth Cir. Case No. 15-16082). The Ninth Circuit denied the request without prejudice to
counsel seeking a written indication from this Court that it would be inclined to consider the new
evidence in the first instance in a Rule 60(b) motion, if the Court of Appeals issued a limited
remand. Docket No. 33 (Ninth Cir. Case No. 15-16082).
Martinez then requested that the Ninth Circuit hold the appeal in abeyance to allow him to
seek an indicative ruling in this Court and remand the matter for consideration of the Rule 60(b)
motion. Docket No. 51 (Ninth Cir. Case No. 15-16082). The Ninth Circuit denied Martinez’s

request for a limited remand without prejudice to filing a renewed motion in the event this Court
issued an indicative ruling in his favor, and stayed the appellate proceedings pending this Court’s
decision on the indicative ruling motion. Docket No. 53 (Ninth Cir. Case No. 12-16082). Martinez
moved in this Court pursuant to Federal Rule of Civil Procedure 62.1(a) for an indicative ruling, and
the Court granted the request after finding that Martinez’s motion to vacate raises a substantial issue.
Docket No. 85. The record on appeal indicates that the Ninth Circuit granted Martinez’s motion for
a limited remand to permit this Court to consider newly-discovered evidence in support of his claim
for actual innocence. Docket No. 57 (Ninth Cir. Case No. 12-16082).
IT IS THEREFORE ORDERED THAT Martinez shall have up to and including July 5,
2017, to file a motion to vacate this Court’s judgment pursuant to Federal Rule of Procedure 60(b).
Respondent shall have up to and including August 4, 2017, to file an opposition. Martinez shall
have up to an including August 18, 2017, to file a reply.
The Clerk of Court is directed to serve a copy of this Order on the Ninth Circuit Court of
Appeals.
Dated: June 5, 2017.
/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge

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