Ashmus v. Ayers

Filing 394

STIPULATION AND ORDER re: dates. Signed by Judge Thelton E. Henderson on 03/10/09. (rbe, COURT STAFF) (Filed on 3/11/2009) (Additional attachment(s) added on 3/11/2009: # 1 AMENDED Stipulation and Order) (rbe, COURT STAFF).

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EDMUND G. BROWN JR. Attorney General of California GLENN R. PRUDEN Supervising Deputy Attorney General RONALD S. MATTHIAS Senior Assistant Attorney General State Bar No. 104684 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: [phone] Fax: [phone] E-mail: [e-mail] Attorneys for Respondent Robert K. Wong MICHAEL LAURENCE Habeas Corpus Resource Center 303 Second Street, Suite 400 South San Francisco, CA 94107 Telephone: [phone] Fax: [phone] [e-mail] [e-mail] Attorneys for Petitioner Troy A. Ashmus IN THE UNITED STATES DISTRICT COURT FOR THE NOTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

TROY ADAM ASHMUS,

CAPITAL CASE Petitioner, C 93-0594 TEH

v. ROBERT K. WONG, Acting Warden of San Quentin State Prison,

STIPULATION AND [PROPOSED] ORDER Date: Time: Courtroom: Respondent. Judge: January 19, 2010 To Be Set Courtroom 12, San Francisco Honorable Thelton E. Henderson

The parties hereby stipulate to the following schedule: 1. On or before March 2, 2009, petitioner will (i) provide to respondent any nonprivileged and relevant material from Mr. Richard Fathy's trial file and billing records that has not yet been produced to respondent, (ii) provide to respondent and the Court a privilege log
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specifying any material petitioner proposes to withhold other than those materials as to which the Court has already authorized non-disclosure, and (iii) provide to the Court those portions of the defense file which petitioner has withheld from respondent for the Court's in camera review. All material disclosed to respondent is protected by this Court's Order Granting Motion to Compel & Protective Orders & Scheduling Order, filed April 27, 2005. 2. On or before July 8, 2009, petitioner shall determine whether he intends to call Richard Fathy, Michael Arkelian, or John Smith to testify at the evidentiary hearing, and if he does, petitioner shall, on or before that same date, prepare and submit a declaration from each summarizing his proposed testimony. 3. On or before August 10, 2009, respondent shall determine whether he intends to depose Richard Fathy, Michael Arkelian, or John Smith, and if he does, respondent shall, on or before that same date, notice any deposition he intends to conduct of each on dates mutually agreed upon by the deponent(s) and counsel for the parties. Petitioner's agreement to the dates on which any of the foregoing depositions are noticed is made without prejudice to his right to move to quash any such deposition on whatever grounds petitioner sees fit. Also, on or before August 10, 2009, petitioner shall determine whether he intends to call any mental health expert witness(es) to testify at the evidentiary hearing, and if he does, petitioner shall, on or before that same date, furnish respondent with a report containing a complete statement of all opinions the witness(es) will express and the basis and reasons for them, the data or other information considered by the witness in forming those opinions, and any exhibits that he or she proposes to be used to summarize or support the opinions. 4. On or before September 8, 2009, respondent shall determine whether further discovery relating to petitioner's proposed expert testimony is indicated, including but not limited to a mental examination of petitioner to be performed by an expert appointed by the Court, an expert retained by respondent, or both, and if he does, respondent shall seek leave therefor on or before that same date. 5. On or before October 21, 2009, petitioner shall file an amended version of the Joint Factual Statement (Doc. 368), annotated to reflect the evidentiary sources upon which he intends
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to rely when attempting to demonstrate the truth of each factual assertion set forth therein. Also, on or before October 21, 2009, (i) the parties shall exchange and lodged with the Court copies of all declarations in lieu of the direct testimony of all persons and all exhibits proposed to be used at the evidentiary hearing and witness and exhibit lists, and if either party's list includes any experts, they shall, on or before that same date, also furnish the other party with a report containing a complete statement of all opinions the witness(es) will express and the basis and reasons for them, the data or other information considered by the witness(es) in forming their opinions, and any exhibits that he or she proposes to be used to summarize or support the opinions, and (ii) petitioner shall deposit with the Court the complete copy of the defense's trial file. (Petitioner shall maintain the original file in its original condition, and shall make it available to the Court continuously throughout the duration of the hearing and thereafter for as long as the Court directs.) 6. On or before November 20, 2009, respondent shall file a reply to petitioner's amended version of the Joint Factual Statement (Doc. 368), annotated to reflect (i) any additional evidentiary sources upon which he intends to rely when attempting to demonstrate the truth of each factual assertion set forth therein, and (ii) with respect to any factual assertions advanced by petitioner that respondent intends to dispute, the bases for such disputation. Also, on or before November 20, 2009, to the extent that either party believes that the other party's submission on October 21, 2009, require the presentation of additional witnesses and/or exhibits, the party or parties shall file the declarations in lieu of the direct testimony of any persons and any additional exhibits proposed to be used at the evidentiary hearing and updated final witness and exhibit lists.
7. On or before November 24, 2009, the parties shall file with the Court a notice

designating which witnesses they intend to cross-examine at the evidentiary hearing. The parties are not to require the attendance of any witness unless there exists a good faith basis to dispute his or her testimony. 8:30 a 1:30 8. The evidentiary hearing will be conducted from _____ _.m. until _____p_.m., beginning on Tuesday, January 19, 2010, and continue through Friday, January 29, 2010, except for Saturday and Sunday.
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DATED: February 24, 2009

/s/ Michael Laurence

DATED: February 24, 2009

/s/ Ronald S. Matthias

PURSUANT TO STIPULATION, IT IS SO ORDERED.

DATED:

03/10/09

UNIT ED

THELTON E. HENDERSON United States District Judge

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S DISTRICT TE C TA

Submitted by: /s/ Ronald S. Matthias RONALD S. MATTHIAS

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