Smith v. Adams

Filing 39

ORDER RE TRAVERSE. Signed by Judge Hamilton on 12/9/11. (pjhlc3, COURT STAFF) (Filed on 12/9/2011)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 TRACY CONRAD SMITH, 11 For the Northern District of California United States District Court 10 Petitioner, No. No. C 09-3764 PJH 12 v. ORDER RE TRAVERSE 13 DARRAL ADAMS, 14 15 Respondent. _______________________________/ 16 On August 17, 2009, petitioner Tracy Smith (“Smith”) filed a pro se petition for a writ 17 of habeas corpus pursuant to 28 U.S.C. § 2254. On February 3, 2010, the court dismissed 18 Smith’s petition with leave to amend, noting that it contained 106 claims, many of which did 19 not appear cognizable and most of which were incomprehensible. In March 2010, Smith 20 retained counsel, Hilda Scheib, after which the court subsequently afforded Smith, now 21 represented by counsel, several extensions of time to file his amended petition. On June 22 21, 2010, Smith filed his amended petition, which raises three claims, including that he: 23 (1) was deprived of his Sixth and Fourteenth Amendment rights to a jury 24 determination regarding whether there was sufficient evidence to find him guilty of 25 robbery; 26 (2) was deprived of his right to due process and to present his case when the trial 27 court refused to instruct on his lesser-included offenses to robbery; and 28 (3) was denied his right to the effective assistance of counsel when counsel failed to 1 file a Pitchess and a Romero motion. 2 Smith asserted that he exhausted the first two claims on direct appeal in state court, 3 but conceded that the third claim is unexhausted. On June 22, 2010, Smith filed a habeas 4 petition with the California Court of Appeal in an effort to exhaust the third claim. On July 5 20, 2010, this court stayed these habeas proceedings to allow Smith to exhaust his claim in 6 state court. 7 On April 21, 2011, Smith notified the court that the California Supreme Court denied 8 his petition for review on March 30, 2011. The court reopened the case and required Smith 9 to supplement the record with (1) his habeas petitions as submitted to the California appellate courts; (2) the California Court of Appeal’s order denying habeas relief; and (3) 11 For the Northern District of California United States District Court 10 the California Supreme Court’s order denying review, which he did on May 17, 2011. The 12 court then issued an order to show cause setting a briefing schedule for the state’s 13 opposition and Smith’s traverse. Smith subsequently filed two motions requesting 14 extensions of time to file his traverse, which the court granted. Pursuant to the September 15 27, 2011 order, Smith’s traverse was due no later than October 26, 2011. 16 Because it appears that Smith intends to file a traverse and because, absent a 17 traverse, Smith will not have filed any comprehensible brief(s) with this court addressing the 18 merits of his three claims, the court will afford Smith one final opportunity to file his 19 traverse. Smith is ORDERED to file his traverse no later than Friday, December 16, 20 2011. If Smith fails to file the traverse, the court will deem the matter fully submitted as is. 21 22 IT IS SO ORDERED. 23 Dated: December 9, 2011 24 25 ______________________________ PHYLLIS J. HAMILTON United States District Judge 26 27 28 2

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