Carter v. Ylst

Filing 152

ORDER: (1) Denying Petitioner's 151 Motion for Reconsideration; (2) Granting Petitioner's Request for Supplemental Merits briefing; and (3) Setting Briefing Schedule. In accordance with the timelines previously set forth in the Court' ;s November 8, 2010 Order, Petitioner's Opening Brief shall be filed on or before November 18, 2011. Respondent's Opposition or Response shall be filed within 20 days from the date the Opening Brief is filed, and the Reply shall be filed within 15 days after the filing of the responsive pleading. Signed by Judge Roger T. Benitez on 10/4/2011. (All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DEAN PHILLIP CARTER,

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CASE No. 06cv1343-BEN (CAB)

DEATH PENALTY CASE

Petitioner,

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ORDER:
vs.

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(1) DENYING PETITIONER'S MOTION
FOR RECONSIDERATION [Doc. No.1S1];

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(2) GRANTING PETITIONER'S
REQUEST FOR SUPPLEMENTAL
MERITS BRIEFING; AND

MICHAEL MARTEL, Acting Warden of the
California State Prison at San Quentin,

(3) SETTING BRIEFING SCHEDULE

Respondent.

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In an Order dated August 12, 2011 [hereinafter "Order"], the Court denied Petitioner's Motion

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for Evidentiary Hearing without prejudice as premature in light of Cullen v. Pinholster, 563 U.S._,

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131 S. Ct. 1388 (2011). On September 8, 2011, Petitioner filed a Motion for Reconsideration and

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Request for Supplemental Briefing ["Mot."].
For the reasons set forth below, the Court DENIES Petitioner's Motion for Reconsideration and

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GRANTS Petitioner's Request for Supplemental Briefing.

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III

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III

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I. DISCUSSION

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Petitioner asserts that reconsideration under Rule 59(e) ofthe Federal Rules of Civil Procedure

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is appropriate "if(I) the district court is presented with newly discovered evidence, (2) the district court

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committed clear error or made an initial decision that was manifestly unjust, or (3) there is an

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intervening change in the controlling law." (Mot. at 2), quoting Zimmerman v. City of Oakland, 255

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F.3d 734, 740 (9th Cir. 2001). The Local Rules of this district provide for reconsideration upon a

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showing of "what new or different facts and circumstances are claimed to exist which did not exist, or

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were not shown, upon such prior application." CivLR 7.I(i)(I).

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Petitioner specifically contends that "the Court committed clear error in concluding that Cullen

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v. Pinholster, 563 U.S. _ , 131 S. Ct. 1388, 179 L. Ed. 2d 557 (2011) requires Carter to first prove he

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satisfies 28 U.S.C. § 2254(d) before he can receive an evidentiary hearing." (Mot. at2.) Petitioner also

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argues that "it would be manifestly unjust for the Court to proceed with this case without first allowing

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Carter to fully brief(l) the impact ofPinholster on his case and (2) whether he satisfies § 2254(d)." (Id.)

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Contrary to Petitioner's contention, this Court did not conclude that Pinholster required

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Petitioner to prove he satisfied section 2254(d) before he could receive an evidentiary hearing. The

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Court instead expressed an intention, consistent with Pinholster and Schriro v. Landrigan, 550 U.S. 465

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(2007), to defer a decision on whether an evidentiary hearing was warranted until the Court was able to

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take into account the requirements ofsection 2254, which necessarily includes both sections 2254(e)(2)

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and 2254(d). (Order at 3); See Pinholster, 131 S. Ct. at 1399, quoting Landrigan, 550 U.S. at 474

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("Because the deferential standards prescribed by § 2254 control whether to grant habeas relief, afederal

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court must take into account those standards in deciding whether an evidentiary hearing is

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appropriate.") (emphasis added.)

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Petitioner's motion for evidentiary hearing without prejudice, and expressing an intention to conduct a

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section 2254(d) analysis along with considering the arguments raised in the pleadings filed in connection

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with the motion for evidentiary hearing, constituted clear error.

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As such, the Court is unpersuaded that its decision denying

Petitioner also contends that the Court signaled an intention to engage in a section 2254(d)

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analysis solely on the arguments presented in connection with the Motion for Evidentiary Hearing. (See .

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Mot. at 6.) This is not the case. The Court merely stated that in conducting the section 2254(d) review, .

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the Court would "consider the arguments raised in the motion papaers filed in support of, or opposition

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to, the Motion for Evidentiary Hearing." (Order at 4.) This statement was intended to explain that the

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Court would conduct a section 2254(d) review along with the evaluation ofwhether Petitioner's federal

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habeas claims warranted an evidentiary hearing, and would thus give due consideration to the papers

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previously filed in this case regarding that motion. The Court did not express an intent to limit or deny

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requests for further briefing, whether on Pinholster, section 2254(d), or other relevant issues. Again,

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based on the argument presented by Petitioner, the Court is unpersuaded that its ruling denying

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Petitioner's motion for evidentiary hearing without prejudice was manifestly unjust.

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Petitioner also "requests that this Court grant him leave to present supplemental merits briefing

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on both the effect ofPinholster and the issue of whether his claims satisfy § 2254(d)." (Mot. at 8.) In

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light ofthe reasons proffered, in particular Petitioner's assertion that he "never intended for his Motion

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for Evidentiary Hearing to be a full briefing of § 2254(d) issues," (see mot. at 7) the Court finds this

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request to be reasonable. Accordingly, merits briefing that addresses whether the claims set forth in the

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Petition satisfy § 2254(d) and addressing Pinholster's impact on Petitioner's entitlement to an

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evidentiary hearing shall be filed in accordance with the schedule set forth below.

II.CONCLUSION

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For the reasons stated above, Petitioner's Motion for Reconsideration (Doc. No. 151] is

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accordance with the timelines previously set forth in the Court's November 8, 2010 Order, Petitioner's

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Opening Brief shall be filed 4iltltin 16

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Respondent's Opposition or Response shall be filed within 20 days from the date the Opening Briefis

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filed, and the Reply shall be filed within 15 days after the filing of t

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Dated:

d&§~: Ihit:is (!lUiSI, on or befor~V. /4

,2011.

esponsive pleading.
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~Y'I

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