Reed, Sr. v. Biter

Filing 41

ORDER TO FILE RESPONSE. Habeas Answer due by 12/10/2015. Signed by Judge Thelton E. Henderson on 10/07/2015. (Attachments: # 1 Certificate/Proof of Service)(tmiS, COURT STAFF) (Filed on 10/8/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TYRONE REED, Sr.,

Case No.

13-cv-5455-TEH

Petitioner,
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v.

ORDER TO FILE A RESPONSE

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MARTIN BITER,
Re: Dkt. No. 38

Respondent.

United States District Court
Northern District of California

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Petitioner, Tyrone Reed, proceeds with a pro se Petition for

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a Writ of Habeas Corpus under 28 U.S.C. § 2254.

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petition presented the following claims: (1) due process violation

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based on trial court’s decision not to admit exculpatory

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evidence; (2) ineffective assistance of trial counsel; (3) due

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process violation based on trial judge’s bias because she took

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the charges against Petitioner personally and because Petitioner

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had filed numerous civil rights complaints against the judge; (4)

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ineffective assistance of counsel appointed on remand to

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represent Petitioner on a motion for a new trial; and (5) due

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process violation based on trial court’s refusal to hold a new

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trial motion or a Marsden hearing based on incompetence of

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counsel.

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The original

Respondent filed a motion to dismiss because only claim four
had been exhausted.

Petitioner eventually elected to dismiss the

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unexhausted claims and the petition continued solely on claim

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four.

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issue a ruling on the sole claim in the petition, Petitioner

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filed an amended petition (Docket No. 33) and stated that the

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California Supreme Court had recently denied a state habeas

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petition, presumably exhausting the additional claims.

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Respondent filed an answer but before the Court could

The amended petition appeared to present the same claims as

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the original petition, though claim one and five as described

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above appeared to be combined.1

Wary that Petitioner was again

bringing a mixed petition, the Court ordered him to provide a

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United States District Court
Northern District of California

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copy of the petition submitted to the California Supreme Court,

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rather than many more months being spent on a second motion to

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dismiss for failure to exhaust.

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Petitioner first submitted a filing (Docket No. 38) that was

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a portion of the petition to the California Supreme Court, but

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lacked the exhibits.

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California Supreme Court that the state superior court and state

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court of appeal were abusing their authority.

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7.

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brings in this federal petition.

It only presented one claim to the

Docket No. 38 at

That petition did not present the substance of the claims he

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Petitioner then submitted an additional filing (Docket No.

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39) that contained the petition to the California Supreme Court

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and exhibits that were presumably filed with the California

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Supreme Court.

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contain his petition to the California Court of Appeal, briefs

The exhibits are several hundred pages and

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The Court originally did not think that Petitioner included the
exhausted claim from the prior petition, but a review of the
amended petition demonstrates that it is presented on page six.
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from prior appeals, transcripts, and many cases.

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throughout the hundreds of pages are the claims Petitioner

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presents in this federal petition.

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Interspersed

Unfortunately, the Court cannot be certain if the claims

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were or were not exhausted.

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hundred pages were provided to the California Supreme Court or

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even if that Court was aware of those claims as the only claim

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specifically brought to the California Supreme Court was that the

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lower courts were abusing their authority.

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It is not clear if the several

The Court will not yet rule on the merits of the claim from

United States District Court
Northern District of California

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the original petition.

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answer the new claims or raise a motion if the claims are

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unexhausted, untimely, or there is another procedural problem.

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The Court construes Docket No. 33 as the amended petition,

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because the other amended petition, Docket No. 39 fails to

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adequately and plainly set forth the claims.

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Respondent will be ordered to either

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For the foregoing reasons and for good cause shown,

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1.

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Petitioner’s motion to amend (Docket No. 38) is GRANTED

and the case continues on the amended petition (Docket No. 33)
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Respondent shall file with the Court and serve on

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Petitioner, within sixty-three (63) days of the issuance of this

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Order, an Answer conforming in all respects to Rule 5 of the

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Rules Governing Section 2254 Cases, showing cause why a writ of

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habeas corpus should not be granted.

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the Answer and serve on Petitioner a copy of all portions of the

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state trial record that have been transcribed previously and that

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are relevant to a determination of the issues presented by the
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Respondent shall file with

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Petition.
If Petitioner wishes to respond to the Answer, he shall do

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so by filing a Traverse with the Court and serving it on

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Respondent within twenty-eight (28) days of his receipt of the

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Answer.

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3.

In lieu of an Answer, Respondent may file a Motion to

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Dismiss on procedural grounds, as set forth in the Advisory

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Committee Notes to Rule 4 of the Rules Governing Section 2254

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Cases.

If Respondent files such a motion, Petitioner shall file

with the Court and serve on Respondent an Opposition or Statement

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United States District Court
Northern District of California

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of Non-Opposition within thirty-five (35) days of receipt of the

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motion, and Respondent shall file with the Court and serve on

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Petitioner a Reply within fourteen (14) days of receipt of any

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Opposition.

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4.

Petitioner is reminded that all communications with the

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Court must be served on Respondent by mailing a true copy of the

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document to Respondent’s counsel.

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Court and all parties informed of any change of address by filing

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a separate document entitled “Notice of Change of Address.”

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IT IS SO ORDERED.
Dated: 10/07/2015

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________________________
THELTON E. HENDERSON
United States District Judge

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Petitioner also must keep the

G:\PRO-SE\TEH\HC.13\Reed5455.ord2.docx

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