Johnson v. Swarthout

Filing 12

ORDER Re Supplemental Evidence. Signed by Judge Edward M. Chen on 12/20/2013. (Attachments: # 1 Certificate/Proof of Service). (emcsec, COURT STAFF) (Filed on 12/20/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ISHMAEL JOHNSON,

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Petitioner,
v.

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For the Northern District of California

United States District Court

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No. C-13-0506 EMC (pr)

GARY SWARTHOUT, Warden,

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ORDER RE SUPPLEMENTAL
EVIDENCE

Respondent.
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Respondent has moved to dismiss the petition for writ of habeas corpus on the ground that it

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was not filed before the expiration of the habeas statute of limitations period. Petitioner has opposed

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the motion and argued that the lateness of his petition should be excused because there was a delay

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in his receipt of materials from counsel, he was separated from his trial transcripts and other

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property for a couple of months in 2012, and was in prisons in which there were “a series of prison

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lockdown[s]” that affected him in unstated ways. Docket # 11 at 2. Petitioner provided no

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declaration (i.e., a statement made under penalty of perjury) or other evidence to support his

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arguments. Even if the statements had been made in a declaration, they are overly broad and lacking

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in some necessary details.

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The Court now allows Petitioner an opportunity to provide evidence in support of his

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arguments that the statute of limitations period should be equitably tolled. Petitioner may file a

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declaration signed under penalty of perjury and may submit any other evidence he has to explain

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why he should receive equitable tolling of the statute of limitations period. With regard to his

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assertion that he did not receive all his materials from counsel in a timely manner, he must state the

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date(s) on which he requested the materials from counsel and the date(s) on which counsel provided

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the requested materials. With regard to his assertion that he was subjected to prison lockdowns, he

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needs to explain when the lockdowns occurred, how long each of the lockdowns lasted, and whether

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a paging system was available to obtain law library materials during the lockdowns. All

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supplemental evidence must be filed and served on or before January 24, 2014. No extensions of

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this deadline should be expected because the requested information should have been provided with

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the original opposition brief and does not require a visit to any law library for legal research.

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If Petitioner files supplemental evidence, Respondent must file and serve any reply brief no
later than February 7, 2014.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: December 20, 2013

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_________________________
EDWARD M. CHEN
United States District Judge

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