Gomez v. Lewis

Filing 42

SUPPLEMENTAL ORDER RE PETITION FOR HABEAS CORPUS. Signed by Judge James Donato on 12/3/2015. (jdlc3S, COURT STAFF) (Filed on 12/3/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JORGE ALEXANDER GOMEZ,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 3:12-cv-02338-JD
SUPPLEMENTAL ORDER RE
PETITION FOR HABEAS CORPUS

v.
SUZANNE M. PEERY, et al.,

Re: Dkt. No. 1

Defendants.
On November 30, 2015, the Court held a telephonic conference with counsel for all parties

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to prepare for an evidentiary hearing on petitioner’s plea agreement claim set for December 16,

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2015. Dkt. No. 40. During that call, and in the papers filed by petitioner for it, three unusual facts

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came to light: (1) Mr. Gomez expressed a desire not to appear at the hearing because he has started

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a job training program and apparently was threatened by the prison administration with losing his

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spot in that program if he was absent for his day in court; (2) in any event, counsel for petitioner

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expressed a desire to submit Mr. Gomez’s plea agreement claim for decision on the papers; and

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(3) respondents stated that they saw no need for a hearing because they have no witnesses or

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evidence to present and stipulated to withdraw all objections to petitioner’s previously-submitted

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declarations on the issue. The Court expressed strong concern about the dilemma of forcing Mr.

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Gomez to choose between giving up his appearance at the hearing or his place in a coveted

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training program. The Court ordered respondents to clarify this troubling situation, which they did

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by filing a statement from the Warden that Mr. Gomez would not be penalized for missing some

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training to pursue his case. Dkt. No. 41.

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That leaves the issue of how to resolve the plea agreement claim. As the Court held in the

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prior order, this issue is subject to de novo review, the evidence in the record about the plea

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agreement is ambiguous, and an evidentiary hearing on the terms and conditions for the 15%

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conduct credit was warranted. Dkt. No. 34. But both sides have now affirmatively waived the

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option of an evidentiary hearing. Consequently, the Court will follow the parties’ lead and decide

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the plea agreement claim on the papers. Counsel for petitioner has advised the Court that if the

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hearing had occurred, he intended to offer testimony from two criminal defense attorneys and

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petitioner’s former counsel. Dkt. No. 38. If petitioner still intends to proffer this evidence, he

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should file the appropriate declarations by December 23, 2015. Respondents have expressly stated

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that they have no additional evidence to tender, and have abandoned any objections to the

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admissibility of the evidence already presented. Respondents may file counter-declarations or

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objections to the new declarations by January 6, 2016. After that, the Court will rule on the issue

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United States District Court
Northern District of California

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without a hearing or further argument.
Petitioner has also moved to a new prison and has asked to substitute Suzanne M. Peery,

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Warden of High Desert State Prison, as respondent in place of G. Lewis. Dkt. No. 36.

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Respondents do not object, and the substitution is granted.

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IT IS SO ORDERED.
Dated: December 3, 2015

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________________________
JAMES DONATO
United States District Judge

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