Polk v. Cate et al

Filing 23

ORDER by Judge William Alsup denying 19 Motion for Discovery; granting 22 Motion for Leave to File (Attachments: # 1 Certificate/Proof of Service) (dt, COURT STAFF) (Filed on 4/9/2013)

Download PDF
1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 SUSAN MAE POLK, No. C 12-5986 WHA (PR) ORDER GRANTING LEAVE TO FILE SECOND AMENDED PETITION; TO SHOW CAUSE; EXTENDING TIME TO ANSWER; DENYING MOTION FOR DISCOVERY 10 11 v. For the Northern District of California United States District Court Petitioner, 12 13 14 MATTHEW CATE, Respondent. (Dkt. 19, 22) / 15 16 Petitioner, a California prisoner proceeding pro se, filed a petition for a writ of habeas 17 corpus pursuant to 28 U.S.C. 2254 setting forth 89 claims. On December 21, 2012, respondent 18 was ordered to show cause why the writ should not be granted based upon these claims. On 19 January 31, 2013, petitioner was granted leave to file an amended petition also setting forth 89 20 claims, and respondent was again ordered to show cause why the writ should not be granted. In 21 the same order, petitioner was informed that she could not continue to amend the petition 22 indefinitely, and that any further amended petition must be submitted on or before March 1, 23 2013. On March 4, 2013, she filed a motion to file a second amended petition with a proposed 24 second amended petition. The motion was signed on February 28, 2013. Good cause 25 appearing, the motion to file the second amended petition is GRANTED. This will be 26 petitioner’s final amended petition, and no further leave to amend will be granted. 27 28 Petitioner’s motion for discovery is DENIED because she has not shown “good cause” for the discovery materials she seeks. See Rule 6(a) 28 U.S.C. foll. § 2254 (requiring “good 1 cause” for discovery in federal habeas proceedings); Bracy v. Gramley, 520 U.S. 899, 908-09 2 (9th Cir. 1997) (good cause for discovery under Rule 6(a) exists if petitioner makes specific 3 allegations showing that if facts are fully developed she will be entitled to relief). 4 The Clerk is instructed to file the proposed second amended petition (dkt. 22) and mail a 5 copy of it with all attachments to the respondent and the respondent's attorney, the Attorney 6 General of the State of California. 7 On or before August 1, 2013, respondent shall file with the court and serve on petitioner showing cause why a writ of habeas corpus should not be granted based on the claims set forth 10 in the second amended petition which are, when liberally construed, cognizable. Respondent 11 For the Northern District of California an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, 9 United States District Court 8 shall file with the answer and serve on petitioner a copy of all portions of the state trial record 12 that have been transcribed previously and that are relevant to a determination of the issues 13 presented by the petition. If petitioner wishes to respond to the answer, she shall do so by filing 14 a traverse with the court and serving it on respondent within 28 days of the date the answer is 15 filed. 16 Respondent may alternatively file, on or before August 1, 2013, a motion to dismiss on 17 procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 18 4 of the Rules Governing Section 2254 Cases. If respondent files such a motion, petitioner shall 19 file with the court and serve on respondent an opposition or statement of non-opposition within 20 28 days of the date the motion is filed, and respondent shall file with the court and serve on 21 petitioner a reply within 14 days of the date any opposition is filed. 22 IT IS SO ORDERED. 23 Dated: April 8 , 2013. 24 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 25 26 27 28 G:\PRO-SE\WHA\HC.12\POLK5986.OSC3.wpd 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?