Stevens v. Ayers

Filing 100

ORDER SETTING BRIEFING SCHEDULE FOR PROCEDURAL DEFAULT AND FOR JOINT STATEMENT OF RECORD-BASED CLAIMS re 97 Notice (Other) filed by Ron Davis. Signed by Judge William Alsup on 1/26/15. (dt, COURT STAFF) (Filed on 1/26/2015)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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CHARLES STEVENS,

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No. C 09-0137 WHA

Petitioner,

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For the Northern District of California

United States District Court

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DEATH PENALTY CASE

v.

ORDER SETTING BRIEFING
SCHEDULE FOR PROCEDURAL
DEFAULT AND FOR JOINT
STATEMENT OF RECORD-BASED
CLAIMS

RON DAVIS, Warden, San Quentin
State Prison

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Respondent.
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/

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The Court is in receipt of respondent’s statement that he does not intend to file a

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separate motion to dismiss and, instead, relies on the procedural default defenses raised in the

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Answer. Respondent’s Answer asserts that claims 5, 6, 20, and 23 are procedurally defaulted in

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whole or in part. Respondent argues that not filing a motion to dismiss will preserve scarce

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resources of the court and the parties and that petitioner has been afforded two opportunities

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with the petition and traverse to contest the default.

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The court notes that claims 13, 14, 17, 19, 20, 22, 26 and 27, which petitioner seeks to

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dismiss, were not covered by the traverse and at least one of those, claim 20, is alleged to be

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procedurally defaulted. In an effort to avoid piecemeal litigation on the procedural default

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issue, the Court directs respondent to file a motion to dismiss based on procedural default no

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later than February 23, 2015. Petitioner’s opposition will be due no later than March 25, 2015

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and the optional reply will be due within 15 days of service of petitioner’s opposition.

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Additionally, in looking to briefing on the merits of the remaining claims that were

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covered by the traverse, the Court directs the parties to meet and confer and file a joint

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statement identifying which claims are record-based and will, therefore, not require an

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evidentiary hearing. The joint statement is due within seven (7) days of the filing date of this

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order. The Court will issue a briefing schedule for the record-based claims following receipt of

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the joint statement.

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IT IS SO ORDERED.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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Dated: January 26 , 2015.

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