Monteverde v. Mitchell

Filing 21

ORDER DENYING REQUEST FOR SUBPOENA without prejudice; EXTENDING TIME FOR PETITIONER TO FILE TRAVERSE re 20 Memorandum in Support. Petitioner shall file a traverse, if he wishes, no later than thirty (30) days from the date this order is filed. Peti tioner may compel a person who is not a party to this action to produce documents. In order to do so, petitioner MUST fill out the subpoena forms provided by the clerk of the Court. The Clerk is instructed to send petitioner four blank subpoena forms along with this Order. Signed by Judge James Ware on 10/27/2009. (ecg, COURT STAFF) (Filed on 11/3/2009) Modified on 12/11/2009 (cv, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

United United States District Court

11
For the Northern District of California

JOSE MONTEVERDE, Petitioner, vs. SHEILA MITCHELL, Respondent.

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No. C 09-00407 JW (PR) ORDER DENYING REQUEST FOR SUBPOENA; EXTENDING TIME FOR PETITIONER TO FILE TRAVERSE

(Docket No. 20)

Petitioner, a state convict currently on probation, filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his state conviction. On October 8, 2009, petitioner filed a request for a subpoena to public institutions, including the Palo Alto Medical Foundation, the Internal Revenue Service, and Bank of America. (Docket No. 20.) The request is DENIED without prejudice. Petitioner may compel a person who is not a party to this action to produce documents for inspection and copying pursuant to a subpoena duces decum. See Fed. R. Cip. P. 34(c), 45(a). In order to do so, petitioner must fill out the subpoena forms provided by the clerk of the Court and must ensure that each person is served with the subpoena by a non-party. Petitioner must tender to each person "the fees for one day's attendance and the
Order Denying Request for Subpoena; Extending Time to File Traverse P:\PRO-SE\SJ.JW\HC.09\Monteverde00407_misc.wpd

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mileage allowed by law." Fed. R. Civ. P. 45(b)(1). The current requisite fee for each person is forty dollars per day, see 28 U.S.C. § 1821(b). These requirements do not apply to a request for production of documents from one party to any other party. See Fed. R. Civ. P. 34(a). The Court will consider ordering the United States Marshal to serve a subpoena duces tecum on a non-party if petitioner submits to the Court a completed subpoena form and the requisite fee. The form must describe the items to be produced with reasonable particularity and designate a reasonable time, place and manner for their production. See Fed. R. Civ. P. 34(b). Respondents filed an answer on the merits to the Court's Order to Show Cause on September 11, 2009. The Order to Show Cause directed Petitioner to file a response to the answer, is he wished to do so, by filing a traverse with the court and serving it on respondent within thirty days of his receipt of the answer. (See Docket No. 5.) On September 23, 2009, petitioner filed a letter with this Court declaring his innocence. (Docket No. 19.) It is unclear whether petitioner filed this document as a response to respondent's answer. In the interest of justice, the Court will extend the time for petitioner to file a traverse. Petitioner shall file a traverse, if he wishes, no later than thirty (30) days from the date this order is filed. The Clerk is instructed to send petitioner four blank subpoena forms along with this Order.

United States District Court

11
For the Northern District of California

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DATED:

October 27, 2009

JAMES WARE United States District Judge

Order Denying Request for Subpoena; Extending Time to File Traverse P:\PRO-SE\SJ.JW\HC.09\Monteverde00407_misc.wpd 2

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

JOSE MONTEVERDE, Petitioner, v. SHEILA MITCHELL, Respondent. /

Case Number: CV09-00407 JW CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 11/3/2009 , I SERVED a true and correct copy(ies) of the That on 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.

Jose Monteverde 1075 Space Park Way No. 51 Mountain View, Ca 94043 Dated: 11/3/2009 Richard W. Wieking, Clerk /s/ By: Elizabeth Garcia, Deputy Clerk