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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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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

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v.
For the Northern District of California

United States District Court

Petitioner,
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MATTHEW CATE,
Respondent.

(Dkt. 19, 22)
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Petitioner, a California prisoner proceeding pro se, filed a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. 2254 setting forth 89 claims. On December 21, 2012, respondent

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was ordered to show cause why the writ should not be granted based upon these claims. On

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January 31, 2013, petitioner was granted leave to file an amended petition also setting forth 89

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claims, and respondent was again ordered to show cause why the writ should not be granted. In

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the same order, petitioner was informed that she could not continue to amend the petition

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indefinitely, and that any further amended petition must be submitted on or before March 1,

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2013. On March 4, 2013, she filed a motion to file a second amended petition with a proposed

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second amended petition. The motion was signed on February 28, 2013. Good cause

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appearing, the motion to file the second amended petition is GRANTED. This will be

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petitioner’s final amended petition, and no further leave to amend will be granted.

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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

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cause” for discovery in federal habeas proceedings); Bracy v. Gramley, 520 U.S. 899, 908-09

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(9th Cir. 1997) (good cause for discovery under Rule 6(a) exists if petitioner makes specific

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allegations showing that if facts are fully developed she will be entitled to relief).

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The Clerk is instructed to file the proposed second amended petition (dkt. 22) and mail a

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copy of it with all attachments to the respondent and the respondent's attorney, the Attorney

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General of the State of California.

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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

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in the second amended petition which are, when liberally construed, cognizable. Respondent

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For the Northern District of California

an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases,

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United States District Court

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shall file with the answer and serve on petitioner a copy of all portions of the state trial record

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that have been transcribed previously and that are relevant to a determination of the issues

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presented by the petition. If petitioner wishes to respond to the answer, she shall do so by filing

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a traverse with the court and serving it on respondent within 28 days of the date the answer is

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filed.

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Respondent may alternatively file, on or before August 1, 2013, a motion to dismiss on

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procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule

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4 of the Rules Governing Section 2254 Cases. If respondent files such a motion, petitioner shall

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file with the court and serve on respondent an opposition or statement of non-opposition within

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28 days of the date the motion is filed, and respondent shall file with the court and serve on

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petitioner a reply within 14 days of the date any opposition is filed.

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IT IS SO ORDERED.

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Dated: April

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, 2013.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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G:\PRO-SE\WHA\HC.12\POLK5986.OSC3.wpd

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