Jansen v. Warden et al

Filing 13


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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 MICHAEL JANSEN, 9 10 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 11 12 13 B. GOWER, Warden, Respondent. / 14 15 Petitioner filed this pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 16 to attack his conviction for making a criminal threat and willful infliction of corporal injury on 17 a spouse or cohabitant. He alleges in his petition that his nolo contendere plea was involuntary 18 because it was made while he was under duress, and that his lawyer provided ineffective 19 assistance of counsel in not filing a timely motion to withdraw the plea. The court found these 20 claims to be cognizable, and ordered respondent to file an answer. 21 In a letter dated October 22, 2012 (Docket # 9), petitioner requested that the court 22 reconsider its October 12, 2012 order (Docket # 7) denying his request to issue a subpoena to 23 the Santa Rosa Police Department. The request for reconsideration is DENIED because 24 petitioner has not shown good cause for discovery. (Docket # 9). The requested police report 25 was written more than six months after he pled guilty, and does not appear to be relevant to the 26 voluntariness of the plea. 27 Petitioner filed a motion for release on appearance bond. The only legal authority he 28 cited, California Penal Code § 1476, does not apply to a federal habeas action. It remains 1 undecided in the Ninth Circuit whether a prisoner may be released on bail during the pendency 2 of his district court habeas action. See In re Roe, 257 F.3d 1077, 1080 (9th Cir. 2001). 3 Assuming arguendo that the district court has the authority to release a state prisoner on bail 4 pending resolution of a habeas proceeding, such a release could occur only in extraordinary 5 cases involving special circumstances or a high probability of success. See id. (quoting Land 6 v. Deeds, 878 F.2d 318, 318-9 (9th Cir. 1989)); see, e.g., In re Roe, 257 F.3d at 1079-80 (district 7 court erred in releasing prisoner on bail during the pendency of his district court habeas 8 proceeding because allegations of actual innocence, failing health, discovery abuses by opponent 9 and available lodging did not satisfy the Land standard for release). Like Roe, this court need 10 not decide whether release pending resolution of a habeas proceeding is allowable because 11 petitioner has not met the demanding standard for any such release. His is not an extraordinary 12 case, and he has not shown that special circumstances exist or that he has a high probability of 13 success in this action. A further impediment to release for this particular petitioner would his 14 dismal record on supervised release: he currently is in prison (rather than being subjected to a 15 suspended sentence) because his probation was revoked on at least three occasions in this case, 16 according to the California Court of Appeal decision filed on July 26, 2012 in People v. Jansen, 17 No. A132681. Petitioner's motion for release on an appearance bond is DENIED. (Docket # 8.) 18 Respondent filed a request for an extension of time to file a response to the petition. 19 Having considered the request and the accompanying declaration of attorney Catherine Rivlin 20 (and petitioner's response to the request), the court GRANTS respondent's request. (Docket # 21 10.) Respondent must file and serve his response to the petition no later than December 21, 22 2012. Petitioner must file and serve his traverse no later than February 1, 2013. 23 Petitioner filed a "motion for issuance of writ of habeas corpus" in which he urged that 24 the court should grant habeas relief due to respondent's failure to timely file an answer to his 25 petition. Respondent timely requested an extension of his November 15, 2012 deadline on 26 November 14, 2012. Petitioner may not have received a copy of the request until November 17 27 (i.e., the date on which he mailed his response to the request) because it was mailed to him, but 28 2 1 the request was timely filed and service by mail was acceptable. Further, the availability of 2 habeas relief by default is at least questionable. Cf. Gordon v. Duran, 895 F.2d 610, 612 (9th 3 Cir. 1990) ("failure to respond to claims raised in a petition for habeas corpus does not entitle 4 the petitioner to a default judgment"); Bermudez v. Reid, 733 F.2d 18, 21 (2d Cir.), cert. denied, 5 469 U.S. 874 (1984) ("were district courts to enter default judgments without reaching the merits 6 of the claim, it would be not the defaulting party but the public at large that would be made to 7 suffer, by bearing either the risk of releasing prisoners that in all likelihood were duly convicted, 8 or the costly process of retrying them"). 9 IT IS SO ORDERED. 10 DATED: November 27, 2012 SUSAN ILLSTON United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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