Olea v. Warden Salinas Valley State Prison et al

Filing 43

ORDER DIRECTING PARTIES TO FILE SUPPLEMENTAL BRIEFING by Judge Lucy H. Koh denying 36 Motion for Reconsideration (Attachments: # 1 Certificate/Proof of Service) (mpb, COURT STAFF) (Filed on 6/18/2014)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ANIANO OLEA,

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Petitioner,
v.
WARDEN,
Respondent.

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No. C 12-0148 LHK (PR)
ORDER DIRECTING PARTIES TO
FILE SUPPLEMENTAL BRIEFING;
DENYING MOTION FOR
RECONSIDERATION

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Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the petition

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should not be granted. Respondent has filed an answer and a supplemental answer. Petitioner

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has filed a traverse. A review of respondent’s brief shows that respondent has not fully

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addressed all of petitioner’s claims. For example, respondent does not address petitioner’s

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subclaims that: (1) counsel was ineffective based on a financial conflict of interest; (2) counsel

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was ineffective for moving to withdraw as counsel; and (3) counsel was ineffective for failing to

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file a statement of mitigation.

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Moreover, it appears that some of petitioner’s claims may be unexhausted. For example,

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it does not appear that petitioner raised the following ineffective assistance of counsel subclaims

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in a petition to the California Supreme Court: (1) failure to apply for bail; (2) failure to move to

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suppress seized evidence; (3) committing fraud upon the Superior Court; and (4) moving to
Order Directing Parties to File Supplemental Briefing; Denying Motion for Reconsideration
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withdraw as counsel.
Within sixty days of the filing date of this order, respondent shall review all the claims

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and subclaims raised in petitioner’s federal petition and, if respondent believes a motion to

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dismiss for failure to exhaust is proper in this action, respondent shall file such a motion. Should

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respondent file such a motion, petitioner must file an opposition within twenty-eight days after

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such motion is filed. Respondent shall then file a reply fourteen days thereafter.

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If respondent believes that a motion to dismiss for failure to exhaust is not proper or if

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respondent waives the exhaustion requirement, then respondent shall instead file a supplemental

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answer addressing the merits of all of petitioner’s claims and subclaims within sixty days of the

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filing date of this order. Petitioner may file a supplemental traverse within thirty days

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thereafter.

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The court notes that petitioner has made references to exhibits in his petition (docket no.

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1), as well as exhibits in his “notice” (docket no. 5). However, the court has no record of

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receiving these exhibits for filing. Should plaintiff wish the court to consider these exhibits

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when considering the merits of petitioner’s petition, petitioner is directed to file a copy of these

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exhibits no later than sixty days from the filing date of this order.

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Petitioner has also filed a motion for reconsideration of the court’s December 3, 2013

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order denying petitioner’s motion for an evidentiary hearing. As the court stated in its previous

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order, the court has not yet determined whether any of petitioner’s claims has satisfied the

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standards that the AEDPA requires prior to receiving an evidentiary hearing. Once the case has

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been fully briefed, the court may reconsider the issue sua sponte. Petitioner’s motion for

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reconsideration is DENIED without prejudice.

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This order terminates docket number 36.

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IT IS SO ORDERED.

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6/17/14
DATED: __________________

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LUCY H. KOH
United States District Judge

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Order Directing Parties to File Supplemental Briefing; Denying Motion for Reconsideration
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