Jansen v. Warden et al

Filing 13

ORDER DENYING DISCOVERY AND RELEASE ON OWN RECOGNIZANCE, AND GRANTING EXTENSION OF DEADLINE 8 10 11 (Illston, Susan) (Filed on 11/27/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL JANSEN,

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No. C 12-4695 SI (pr)

Petitioner,

ORDER DENYING DISCOVERY AND
RELEASE ON OWN
RECOGNIZANCE, AND GRANTING
EXTENSION OF DEADLINE

v.

United States District Court
For the Northern District of California

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B. GOWER, Warden,
Respondent.
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Petitioner filed this pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254

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to attack his conviction for making a criminal threat and willful infliction of corporal injury on

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a spouse or cohabitant. He alleges in his petition that his nolo contendere plea was involuntary

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because it was made while he was under duress, and that his lawyer provided ineffective

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assistance of counsel in not filing a timely motion to withdraw the plea. The court found these

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claims to be cognizable, and ordered respondent to file an answer.

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In a letter dated October 22, 2012 (Docket # 9), petitioner requested that the court

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reconsider its October 12, 2012 order (Docket # 7) denying his request to issue a subpoena to

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the Santa Rosa Police Department. The request for reconsideration is DENIED because

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petitioner has not shown good cause for discovery. (Docket # 9). The requested police report

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was written more than six months after he pled guilty, and does not appear to be relevant to the

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voluntariness of the plea.

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Petitioner filed a motion for release on appearance bond. The only legal authority he

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cited, California Penal Code § 1476, does not apply to a federal habeas action. It remains

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undecided in the Ninth Circuit whether a prisoner may be released on bail during the pendency

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of his district court habeas action. See In re Roe, 257 F.3d 1077, 1080 (9th Cir. 2001).

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Assuming arguendo that the district court has the authority to release a state prisoner on bail

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pending resolution of a habeas proceeding, such a release could occur only in extraordinary

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cases involving special circumstances or a high probability of success. See id. (quoting Land

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v. Deeds, 878 F.2d 318, 318-9 (9th Cir. 1989)); see, e.g., In re Roe, 257 F.3d at 1079-80 (district

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court erred in releasing prisoner on bail during the pendency of his district court habeas

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proceeding because allegations of actual innocence, failing health, discovery abuses by opponent

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and available lodging did not satisfy the Land standard for release). Like Roe, this court need

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not decide whether release pending resolution of a habeas proceeding is allowable because

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petitioner has not met the demanding standard for any such release. His is not an extraordinary

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case, and he has not shown that special circumstances exist or that he has a high probability of

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success in this action. A further impediment to release for this particular petitioner would his

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dismal record on supervised release: he currently is in prison (rather than being subjected to a

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suspended sentence) because his probation was revoked on at least three occasions in this case,

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according to the California Court of Appeal decision filed on July 26, 2012 in People v. Jansen,

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No. A132681. Petitioner's motion for release on an appearance bond is DENIED. (Docket # 8.)

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Respondent filed a request for an extension of time to file a response to the petition.

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Having considered the request and the accompanying declaration of attorney Catherine Rivlin

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(and petitioner's response to the request), the court GRANTS respondent's request. (Docket #

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10.) Respondent must file and serve his response to the petition no later than December 21,

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2012. Petitioner must file and serve his traverse no later than February 1, 2013.

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Petitioner filed a "motion for issuance of writ of habeas corpus" in which he urged that

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the court should grant habeas relief due to respondent's failure to timely file an answer to his

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petition. Respondent timely requested an extension of his November 15, 2012 deadline on

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November 14, 2012. Petitioner may not have received a copy of the request until November 17

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(i.e., the date on which he mailed his response to the request) because it was mailed to him, but

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the request was timely filed and service by mail was acceptable. Further, the availability of

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habeas relief by default is at least questionable. Cf. Gordon v. Duran, 895 F.2d 610, 612 (9th

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Cir. 1990) ("failure to respond to claims raised in a petition for habeas corpus does not entitle

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the petitioner to a default judgment"); Bermudez v. Reid, 733 F.2d 18, 21 (2d Cir.), cert. denied,

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469 U.S. 874 (1984) ("were district courts to enter default judgments without reaching the merits

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of the claim, it would be not the defaulting party but the public at large that would be made to

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suffer, by bearing either the risk of releasing prisoners that in all likelihood were duly convicted,

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or the costly process of retrying them").

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IT IS SO ORDERED.

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DATED: November 27, 2012
SUSAN ILLSTON
United States District Judge

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