Sigueiros v. Knipp

Filing 17

ORDER LIFTING STAY; DIRECTING CLERK TO ADMINISTRATIVELY REOPEN ACTION; GRANTING 16 MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEFING AND EXHIBITS. Signed by Judge Maxine M. Chesney on October 18, 2011. (mmcsec, COURT STAFF) (Filed on 10/18/2011) (Additional attachment(s) added on 10/18/2011: # 1 Certificate of Service) (tlS, COURT STAFF).

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 10 United States District Court For the Northern District of California 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 12 13 14 15 16 CLETO SIQUEIROS, ) ) Petitioner, ) ) v. ) ) KEN CLARK, Warden, ) ) Respondent. ) ) ______________________________ ) No. C 08-2939 MMC (PR) ORDER LIFTING STAY; DIRECTING CLERK TO ADMINISTRATIVELY REOPEN ACTION; GRANTING MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEFING AND EXHIBITS (Docket No. 16) 17 18 On June 12, 2008, petitioner, a California prisoner proceeding pro se, filed the above- 19 titled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In 2005, in the 20 Superior Court of Santa Clara County, petitioner was convicted of rape and lewd and 21 lascivious acts on a child under the age of fourteen. In the instant petition, petitioner claims 22 his trial counsel rendered ineffective assistance by failing to challenge the credentials of the 23 prosecution’s medical expert and by failing to call a defense expert to give testimony about 24 the victim’s physical condition. Petitioner also claims his trial counsel failed to call 25 witnesses who could have impeached the victim’s credibility and that his appellate counsel 26 failed to challenge on appeal the validity of petitioner’s sentence. Respondent has filed an 27 answer to the petition, and petitioner has filed a traverse. It is undisputed that all of the 28 claims in the petition are exhausted. 1 On January 27, 2010, the same date petitioner filed his traverse, petitioner filed a 2 motion to stay the petition. Therein, petitioner asserted he had recently been informed by the 3 Office of the Public Defender of Santa Clara County that, in view of the decision of the 4 California Court of Appeal in People v. Uribe, 162 Cal. App. 4th 1457 (2008), petitioner’s 5 case had been referred to the Independent Defense Counsel Office for a determination as to 6 whether a writ of habeas corpus should be pursued in state court on petitioner’s behalf. See 7 id. at 1463 (holding where videotape of examination of victim by Sexual Assault Response 8 Team (SART) was evidence favorable to defense as set forth in Brady v. Maryland, 373 U.S. 9 83 (1963), prosecution’s failure to produce such evidence constituted Brady violation). United States District Court For the Northern District of California 10 By order filed July 8, 2010, this Court, while noting petitioner’s failure to state an 11 intent to return to state court to exhaust a new claim based on Uribe, exercised its discretion 12 to grant petitioner a sixty-day stay of the instant proceedings, for the purpose of his 13 informing the Court as to whether he intended to return to state court to exhaust such a claim. 14 The Court advised petitioner that if he failed to respond within sixty days, the stay would be 15 lifted and the petition would be deemed ready for a decision on the merits. 16 More than sixty days have passed since the filing of the Court’s order, and petitioner 17 has not informed the Court of any intent to return to state court to exhaust a Uribe claim. 18 Accordingly, the stay will be lifted and the action will be reopened. 19 The Court next considers petitioner’s motion, filed April 11, 2011, to expand the 20 record and submit further briefing based on assertedly newly discovered evidence pertaining 21 to petitioner’s ineffective assistance of counsel claim. No opposition to the motion has been 22 filed, and as set forth below, good cause for the relief requested has been shown. 23 In support of the motion, petitioner states he has received a letter from an attorney, 24 Allen Schwartz, in which letter, submitted by petitioner, said attorney states “a medical 25 expert was recently hired by the Public Defender’s Office who reviewed the alleged victim’s 26 medical records in [petitioner’s] case [and] determined that the prosecution expert’s opinion 27 was wrong.” (See Mot. at 2; Attachment at 1.) Pursuant to the Federal Rules of Civil 28 Procedure, as made applicable to habeas proceedings, amendments to pleadings may be made 2 1 at any time during the course of the proceedings, and leave to amend should be “freely 2 give[n] when justice so requires.” See Fed. R. Civ. P. 15(a)(2), (b)(1); 28 U.S.C. § 2242 3 (providing Rules of Civil Procedure pertaining to amendments are applicable to habeas 4 cases); see also Fed. R. Civ. P. 81(a)(4); Habeas Corpus Rule 12.1 In this instance, petitioner 5 has made an adequate showing of need to amend, and there is no suggestion of bad faith, 6 undue delay2, or prejudice to either party. See Bonin v. Calderon, 59 F.3d 815, 845-46 (9th 7 Cir. 1995) (setting forth factors weighing against amendment). 8 9 United States District Court For the Northern District of California 10 11 12 CONCLUSION Based on the foregoing, the Court orders as follows: 1. The stay entered herein on July 8, 2010 is hereby LIFTED, and the Clerk is directed to ADMINISTRATIVELY REOPEN the instant action. 2. Petitioner’s motion for leave to file supplemental briefing and expand the record is 13 hereby GRANTED. Petitioner shall file supplemental briefing, not to exceed fifteen pages, 14 and any additional exhibits, on his ineffective assistance of counsel claim within thirty days 15 of the filing date of this order. Respondent shall file a supplemental answer, not to exceed 16 fifteen pages, within thirty days of the filing of petitioner’s supplemental briefing. If 17 petitioner wishes to file a supplemental traverse, he shall do so with fifteen days of the filing 18 of respondent’s supplemental answer. Any such traverse is not to exceed ten pages. 19 This order terminates Docket No. 16. 20 IT IS SO ORDERED. 21 DATED: October 18, 2011 22 23 _________________________ MAXINE M. CHESNEY United States District Judge 24 25 1 26 27 Rule 15 applies to amendments to answers in habeas cases as well. See Waldrip v. Hall, 548 F.3d 729, 732 (9th Cir. 2008). 2 Although the letter is dated June 10, 2010, petitioner states he waited to file the instant motion because he was under the impression that a state habeas petition was to be 28 filed based on Schwartz’s findings. 3

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