Rodriguez v. Warden, C.S.A.T.F.

Filing 73

ORDER VACATING HEARING DATE AND SETTING BRIEFING SCHEDULE. Signed by Judge Hamilton on 6/13/11. (pjhlc3, COURT STAFF) (Filed on 6/13/2011)

1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
NORTHERN DISTRICT OF CALIFORNIA
8
9
10
11

SALVADOR A. RODRIGUEZ,

12
13

Petitioner,

No. C 04-2233 PJH

v.
ORDER VACATING HEARING DATE
AND SETTING BRIEFING SCHEDULE

14
DERRAL ADAMS, Warden,
15
16
17

Respondent.
___________________________________/
On June 1, 2011, the court granted Rodriguez’s federal habeas petition under 28

18

U.S.C. § 2254. On June 10, 2011, respondent filed a motion to alter judgment and a

19

request for an evidentiary hearing. The court VACATES the hearing date, and will decide

20

the matter on the papers. Petitioner’s opposition brief is due no later than Friday, July 8,

21

2011, and respondent’s reply is due no later than Friday, July 22, 2011.

22
23
24

In particular, the parties should address the following issues, in addition to any
others raised by respondent in its opening brief:
1)

a.

Whether this court should now reconsider its June 1, 2011 order

25

granting petitioner relief on his ineffective assistance of counsel claim

26

based on the United States Supreme Court’s decision in Walker v.

27

Martin, 131 S.Ct. 1120, 1128-29 (Feb. 23, 2011); and

28

b.

why respondent failed to raise the issue in a more timely fashion
following the Supreme Court’s February 2011 decision in Walker in a

1

motion to dismiss, supplemental memorandum, or otherwise, and

2

whether those reasons now excuse respondent’s earlier failure to raise

3

the procedural bar issue as an affirmative defense; and

4

2)

whether, as suggested by respondent, this court is permitted to consider in

5

the context of federal habeas proceedings new evidence adduced at an

6

evidentiary hearing before this court, but not presented to the state court,

7

pursuant to the United States Supreme Court’s recent decision in Cullen v.

8

Pinholster, 131 S.Ct. 1388, 1398 (April 4, 2011) (“the record under review

9

must be limited to the record in existence at that same time i.e., the record

10

before the state court”).

11

IT IS SO ORDERED.

12

Dated: June 13, 2011

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

_________________________
PHYLLIS J. HAMILTON
United States District Judge