Merino v. Martel

Filing 25

ORDER 23 LIFTING STAY, REOPENING CASE, AND DIRECTING RESPONDENT TO FILE SUPPLEMENTAL ANSWER TO PETITIONER'S AMENDMENT TO THE PETITION. Signed by Judge Claudia Wilken on 11/3/2011. (ndr, COURT STAFF) (Filed on 11/3/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MARIO MERINO,

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No. C 08-3231 CW (PR)

Petitioner,

ORDER LIFTING STAY,
REOPENING CASE, AND
DIRECTING RESPONDENT TO
FILE SUPPLEMENTAL ANSWER
TO PETITIONER'S AMENDMENT
TO THE PETITION

v.
MICHAEL MARTEL, Warden,
Respondent.

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(Docket no. 23)

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United States District Court
For the Northern District of California

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Petitioner Mario Merino, a state prisoner, filed this pro se

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petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,

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raising three grounds for relief.

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issued an Order to Show Cause why the writ should not be granted.

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Respondent filed an answer and Petitioner filed a traverse.

On July 15, 2008, the Court

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Thereafter, Petitioner moved to stay the petition on the

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ground that he had been informed by the Santa Clara County Office

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of the Public Defender that the office was reopening his case based

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on the state appellate court's recent decision in People v. Uribe,

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162 Cal. App. 4th 1457 (2008), which held that a videotape of

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a victim's Sexual Assault Response Team (SART) examination was

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favorable defense evidence as defined under Brady v. Maryland, 373

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U.S. 83 (1963), and that the prosecution's failure to produce the

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videotape of the SART exam constituted a Brady violation.

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162 Cal. App. 4th at 1463.

Uribe,

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On May 6, 2010, the Court granted Petitioner's request to stay

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the present proceedings while he returned to state court to exhaust

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his Brady claim.

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Now, having exhausted his state remedies,

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Petitioner has filed an amendment to the petition setting forth his

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Brady claim and a request to lift the stay.

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Good cause appearing, Petitioner's motion to lift the stay is
GRANTED.

The Clerk of the Court shall REOPEN this case.

Because Petitioner's original three claims already have been

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briefed by the parties, Respondent shall file with the Court and

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serve upon Petitioner, within sixty (60) days of the issuance of

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this Order, a supplemental answer to the amendment to the petition.

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Respondent shall file with the supplemental answer a copy of all

United States District Court
For the Northern District of California

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portions of the state trial record that have been transcribed

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previously and that are relevant to a determination of the issue

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presented by the amendment to the petition.

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If Petitioner wishes to respond to the answer, he shall do so

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by filing a supplemental traverse with the Court and serving it on

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Respondent within thirty (30) days of his receipt of the

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supplemental answer.

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Petitioner's claims, will be deemed submitted and ready for

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decision thirty days after the date Petitioner is served with

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Respondent's supplemental answer.

Otherwise, the entire petition, i.e., all of

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Petitioner is reminded that all communications with the Court,

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whether by way of formal legal motions or informal letters, must be

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served on Respondent by mailing a true copy of the document to

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Respondent's counsel.

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Extensions of time are not favored, though reasonable

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extensions will be granted.

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must be filed no later than seven (7) days prior to the deadline

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sought to be extended.

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Any motion for an extension of time

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The Clerk shall serve a copy of this Order and the amendment

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to the petition (docket no. 22) and all attachments thereto upon

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Respondent's attorney.

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Order on Petitioner at his most current address.

The Clerk shall also serve a copy of this

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This Order terminates Docket no. 23.

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IT IS SO ORDERED.

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Dated: 11/3/2011
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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United States District Court
For the Northern District of California

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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MARIO MERINO,

Case Number: CV08-03231 CW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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WARDEN, MULE CREEK STATE PRISON et
al,
Defendant.

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United States District Court
For the Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on November 3, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located
in the Clerk's office.

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Mario Merino V-54572
CTF-N.W.B.
252u
P.O. Box 705
Soledad, CA 93960-0705
Dated: November 3, 2011
Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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