Martinez v. Director of CDCR

Filing 95

ORDER signed by Senior Judge James K. Singleton on 9/28/2017 VACATING the hearing on 87 Motion to Vacate Judgment set for 9/29/2017; ORDERING the respondent to file a surreply to 93 Reply to Response to Motion by 10/9/2017. (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: Surreply Briefing]

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, the Ninth
Circuit granted Martinez’s motion for a limited remand to permit this Court to consider newlydiscovered evidence in support of his claim for actual innocence. Docket No. 57 (Ninth Cir. Case
No. 12-16082).
Martinez then filed a Motion to Vacate Judgment in which counsel requested that a hearing
be held on September 29, 2017, at 8:30 a.m. in the Eastern District of California Courtroom in
Sacramento. Docket No. 87. On August 2, 2017, Respondent opposed the motion, Docket No. 88,
and Martinez replied on September 5, 2017, Docket No. 93. Respondent has now filed a motion
requesting that he be given an opportunity to respond to Martinez’s argument, raised for the first

time on reply, that a miscarriage of justice overrides Congress’s bar on second or successive habeas
petitions. Docket No. 94.
IT IS THEREFORE ORDERED THAT the hearing scheduled for September 29, 2017,
is VACATED.
IT IS FURTHER ORDERED THAT Respondent shall have up to and including October
9, 2017, to file a surreply to Martinez’s Reply in Support of his Motion to Vacate Judgment, which
addresses Martinez’s argument, raised for the first time in reply, that a miscarriage of justice
overrides Congress’s bar on second or successive habeas petitions. No other arguments will be
considered.
Dated: September 28, 2017.
/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge

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