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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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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TRACY CONRAD SMITH,
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For the Northern District of California

United States District Court

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Petitioner,

No. No. C 09-3764 PJH

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v.

ORDER RE TRAVERSE

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DARRAL ADAMS,
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Respondent.
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On August 17, 2009, petitioner Tracy Smith (“Smith”) filed a pro se petition for a writ

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of habeas corpus pursuant to 28 U.S.C. § 2254. On February 3, 2010, the court dismissed

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Smith’s petition with leave to amend, noting that it contained 106 claims, many of which did

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not appear cognizable and most of which were incomprehensible. In March 2010, Smith

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retained counsel, Hilda Scheib, after which the court subsequently afforded Smith, now

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represented by counsel, several extensions of time to file his amended petition. On June

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21, 2010, Smith filed his amended petition, which raises three claims, including that he:

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(1) was deprived of his Sixth and Fourteenth Amendment rights to a jury

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determination regarding whether there was sufficient evidence to find him guilty of

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robbery;

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(2) was deprived of his right to due process and to present his case when the trial

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court refused to instruct on his lesser-included offenses to robbery; and

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(3) was denied his right to the effective assistance of counsel when counsel failed to

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file a Pitchess and a Romero motion.

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Smith asserted that he exhausted the first two claims on direct appeal in state court,

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but conceded that the third claim is unexhausted. On June 22, 2010, Smith filed a habeas

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petition with the California Court of Appeal in an effort to exhaust the third claim. On July

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20, 2010, this court stayed these habeas proceedings to allow Smith to exhaust his claim in

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state court.

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On April 21, 2011, Smith notified the court that the California Supreme Court denied

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his petition for review on March 30, 2011. The court reopened the case and required Smith

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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)

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For the Northern District of California

United States District Court

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the California Supreme Court’s order denying review, which he did on May 17, 2011. The

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court then issued an order to show cause setting a briefing schedule for the state’s

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opposition and Smith’s traverse. Smith subsequently filed two motions requesting

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extensions of time to file his traverse, which the court granted. Pursuant to the September

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27, 2011 order, Smith’s traverse was due no later than October 26, 2011.

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Because it appears that Smith intends to file a traverse and because, absent a

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traverse, Smith will not have filed any comprehensible brief(s) with this court addressing the

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merits of his three claims, the court will afford Smith one final opportunity to file his

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traverse. Smith is ORDERED to file his traverse no later than Friday, December 16,

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2011. If Smith fails to file the traverse, the court will deem the matter fully submitted as is.

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IT IS SO ORDERED.

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Dated: December 9, 2011

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______________________________
PHYLLIS J. HAMILTON
United States District Judge

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