Opinion
Case No. CV 06-02534 LKK GGH.
August 8, 2007
JOSEPH J. WISEMAN, ESQ., CSBN 107403, JOSEPH J. WISEMAN, P. C., Davis, California, Attorney for Defendant, FRANCISCO PEREZ MEDINA.
California Attorney General's Office, By: PATRICK JAMES WHALEN, Deputy Attorney General, Attorney for Respondent, M. CRAMER.
STIPULATION AND ORDER TO EXTEND TIME TO RESPOND TO COURT'S SCHEDULING ORDER DATED MARCH 27, 2007
It is hereby stipulated and agreed to between Petitioner, FRANCISCO PEREZ MEDINA, through his counsel of record, Joseph J. Wiseman, and Respondent, M. CRAMER, through his counsel of record, Patrick James Whalen, Deputy Attorney General, California Attorney General's Office, that Petitioner shall have an additional thirty-five days from August 4, 2007 to respond to the Court's Scheduling Order dated March 27, 2007.
The parties have entered this Stipulation on the grounds that Petitioner's counsel needs additional time to review to review the file and records in this case to determine whether or not Petitioner will proceed on the original petition, or file an amended, fully exhausted petition for relief.
ORDER
Pursuant to Stipulation of the parties and for good cause having been shown, IT IS HEREBY ORDERED THAT:
1. Should petitioner elect to proceed on the original petition, petitioner must so inform the court, as well as file any supplemental memorandum of points and authorities on or before September 8, 2007;
2. Should petitioner elect to proceed upon an amended petition of exhausted claims only, petitioner must file the amended petition on or before September 8, 2007.
3. If petitioner proceeds as set forth either under no. 1 or no. 2 above, respondent must file an answer or dispositive motion within 60 days thereafter; petitioner must file any reply or opposition, as appropriate, within 30 days of service of respondent's responsive pleading; if respondent filed a motion, respondent will have 15 days after service of an opposition to file a reply.
4. Should petitioner identify unexhausted claims which petitioner will seek to exhaust, petitioner shall file an amended petition, on or before September 8, 2007, setting forth all claims, exhausted and unexhausted, and shall demonstrate good cause for having failed to exhaust state court remedies as to any claim which petitioner would seek to exhaust. Petitioner shall move the court to hold the proceedings in abeyance pending exhaustion of state court remedies as to the unexhausted claims, on or before September 8, 2007; if a stay is ultimately granted, petitioner must immediately pursue state court exhaustion, that is, within 30 days of the granting of a stay, and, upon said exhaustion in state court, within 30 days, proceed upon the amended petition in federal court.
5. Should respondent object to any motion for a stay of proceedings by petitioner to pursue unexhausted claims, respondent must file any opposition to such a motion within 30 days of service thereof; thereafter, petitioner has 15 days to file any reply.
6. If petitioner intends to make a motion for leave to conduct discovery under the Rules Governing Section 2254 Cases, Rule 6(a), petitioner must do so by no later than September 8, 2007; if respondent opposes any such motion respondent must do so within 30 days thereafter; petitioner's reply, if any, must be filed within 15 days of any opposition by respondent.
7. If petitioner chooses to move for an evidentiary hearing, petitioner must do so at the earliest appropriate opportunity; should petitioner file a motion for an evidentiary hearing, respondent must file any opposition within 30 days of service of the motion, and petitioner must file any reply within 15 days of service of any opposition.