Morris v. Malfi et al

Filing 32

ORDER by Judge Illston granting 31 Motion for Extension of Time to File (ts, COURT STAFF) (Filed on 10/10/2008)

Case 3:06-cv-07409-SI

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Filed 09/22/2008

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S U Z A N N E A. LUBAN A t t o r n e y at Law S t a t e Bar No.: 120629 3 7 5 8 Grand Ave. #4c O a k l a n d , California 94610 T e l e p h o n e 510/832-3555 A t t o r n e y for Petitioner T A R A Y T. MORRIS

U N I T E D STATES DISTRICT COURT F O R THE NORTHERN DISTRICT OF CALIFORNIA

T A R A Y T. MORRIS

) ) Petitioner, ) ) vs. ) ) TO NY MALFI, Warden, et al. ) ) Res pon dent. ) _________________________________ )

C a s e No.: C 06-7409 P E T I T I O N E R ' S NOTICE OF M O T I O N AND MOTION T O STAY FILING OF TRAVERSE P E N D IN G INVESTIGATION, A N D PROPOSED ORDER J u d g e : Hon. Susan Ilston

To : Respondent Warden Tony Malfi, Attorney General Edmund G. Brown, Jr., and Deputy Attorney General M ichae l D. O'Reilly P e t i ti o n e r TARAY T. MORRIS hereby moves this Court to stay the Order d i r e c ting him to file a Traverse 30 days after the respondent's filing of the Answer,1 to e n a b l e him to obtain additional evidence to support his claims. This Motion is being s u b m i t te d without setting a hearing date, unless the Court wishes to hear argument from t h e parties. I n this Court's order denying the respondent's motion to dismiss the Amended P e t i ti o n , the Court found that the petition was filed timely. In the context of that

This Court's Order filed July 21, 2008 directed the respondent to file his An sw er by August 11, 2008 and petitioner to file a Traverse by September 11, 2008. H o w e v e r , respondent obtained an unopposed extension of time and filed the Answer o n September 9, 2008. Accordingly, the Traverse would be due on October 9, 2008. 1

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d e t e r m in a t i o n , the Court found that respondent did not point to any evidence that petition er was not mentally ill after November 17, 2004, the last date prison psychiatric p r o f e s si o n a l s issued a finding that petitioner was mentally healthy. The Court noted t h a t petitioner referred himself to the psychiatric staff on February 10, 2005, based on a u d i t o ry hallucinations and paranoid ideation, and that on May 17, 2005 he was d i a g n o s e d with head injury psychosis and/or paranoid schizophrenia. (7/21/08 Order p . 2 . ) Based on medical evidence already submitted, petitioner suffered two head i n j u ri e s in his childhood (he received severe blunt trauma injuries to the head in a car accid ent at age 5, and was shot in the head at age 13), and undisputably severe brain t r a u m a from a violent assault on February 18, 1999, which placed him in a three-weekl o n g coma and caused permanent traumatic brain injury. All of these head injuries o c c u r r e d prior to the commission in October 1999, six months after his discharge from long-term rehabilitative hospitalization, of the murder and carjacking that led to the two o t h e r life sentences which petitioner is serving, and certainly prior to the April 27, 2004 plea and conviction for the assault offense that is the underlying case under attack in this habeas case. Petitioner has asserted that his illness predated the conviction in this c a s e , and that his illness was responsible for his failure to disclose, and prison officials' failure to detect his illness. In particular, the hallucinations directed petitioner not to tell anyo ne about the voices he was hearing, and otherwise directed and controlled his b e h a v i o r . As the Court has noted, Mr. Morris's illness has never abated, and he remains s u b j e c t to auditory and visual hallucinations despite the involuntary medication p r o t o c o l, although the degree of intrusiveness of the hallucinations is somewhat abated b y the medication. P e t i ti o n e r will submit a separate ex parte request for expert funding to acco mp lish this evidence-gathering, upon selecting the appropriate and qualified expert, h o p e f u l ly within 14 days of this filing. Petitioner is seeking leave to expend CJA funds t o retain a psychiatric expert to evaluate the information provided by the prison

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p s y c h i a tr i c staff and to examine petitioner to determine the probable state of his mental h e a l th on April 27, 2004. Petitioner remains incarcerated at California State Prison S a c r a m e n t o , serving his consecutive life sentences. Deputy Attorney General Michael O ' R e illy has advised the undersigned that he has no objection to extending petitioner's t i m e to file the Traverse, but that this does not mean that he supports CJA funding for further psychiatric evaluations. T h e r e f o r e, is requested that petitioner's obligation to file his Traverse be delayed f o r a reasonable time while the expert investigation takes place, with petitioner's c o u n s e l to provide a status report to the Court within 45 days after the approval of CJA fun ds, if such approval is granted. D A T E D : September 22, 2008 R e s p e c t f u ll y submitted,

/ S / Suzanne A. Luban ______________ S U Z A N N E A. LUBAN Co u n s e l for TARAY T. MORRIS

_______________________________ ORDER F o r Good Cause Shown, IT IS SO ORDERED. Dated: __________________________________ H O N . SUSAN ILLSTON U . S . District Court Judge

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