Smith v. Swarthout

Filing 13

ORDER REQUESTING SUPPLEMENTALL BLRIEFING [re 1 Petition for Writ of Habeas Corpus filed by Gregory C. Smith]. Signed by Judge William Alsup on 4/12/2012. (whasec, COURT STAFF) (Filed on 4/12/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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GREGORY C SMITH,

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For the Northern District of California

United States District Court

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Petitioner,

No. C 11-00814 WHA

v.
GARY SWARTHOUT, Warden,

ORDER REQUESTING
SUPPLEMENTAL BRIEFING

Defendant.
/
Respondent is directed to file a supplemental brief addressing claim 5 of petitioner’s

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habeas petition, filed on February 22, 2011. In the heading of claim 5, petitioner alleges that

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trial counsel was ineffective at sentencing, but the argument that follows addresses substantive

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challenges to petitioner’s sentencing. In his answer, respondent does not address the merits of

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claim 5 on the grounds that it is unexhausted due to petitioner’s failure to raise it in his state

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petition. Petitioner did however, raise substantive challenges to his sentencing in a petition for

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review presented to the Supreme Court of California. Lodged Exh. I. Liberally construed,

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claim 5 is exhausted. See Peterson v. Lampert, 319 F.3d 1153, 1159 (9th Cir. 2003) (counseled

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petitions should be read differently from pro se ones.)

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Respondent is hereby instructed to address the merits of the sentencing issues raised in

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claim 5 in a supplemental brief within sixty days of the date of this order. Petitioner shall have

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thirty days from the date of service of respondent’s brief to file a response.

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IT IS SO ORDERED.

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Dated: April 12, 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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