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Merino v. Martel

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
Nov 3, 2011
No. C 08-3231 CW (PR) (N.D. Cal. Nov. 3, 2011)

Opinion

No. C 08-3231 CW (PR)

11-03-2011

MARIO MERINO, Petitioner, v. MICHAEL MARTEL, Warden, Respondent.


ORDER LIFTING STAY, REOPENING CASE, AND DIRECTING RESPONDENT TO FILE SUPPLEMENTAL ANSWER TO PETITIONER'S AMENDMENT TO THE PETITION

(Docket no. 23)

Petitioner Mario Merino, a state prisoner, filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, raising three grounds for relief. On July 15, 2008, the Court issued an Order to Show Cause why the writ should not be granted. Respondent filed an answer and Petitioner filed a traverse.

Thereafter, Petitioner moved to stay the petition on the ground that he had been informed by the Santa Clara County Office of the Public Defender that the office was reopening his case based on the state appellate court's recent decision in People v. Uribe, 162 Cal. App. 4th 1457 (2008), which held that a videotape of a victim's Sexual Assault Response Team (SART) examination was favorable defense evidence as defined under Brady v. Maryland, 373 U.S. 83 (1963), and that the prosecution's failure to produce the videotape of the SART exam constituted a Brady violation. Uribe, 162 Cal. App. 4th at 1463.

On May 6, 2010, the Court granted Petitioner's request to stay the present proceedings while he returned to state court to exhaust his Brady claim. Now, having exhausted his state remedies, Petitioner has filed an amendment to the petition setting forth his Brady claim and a request to lift the stay.

Good cause appearing, Petitioner's motion to lift the stay is GRANTED. The Clerk of the Court shall REOPEN this case.

Because Petitioner's original three claims already have been briefed by the parties, Respondent shall file with the Court and serve upon Petitioner, within sixty (60) days of the issuance of this Order, a supplemental answer to the amendment to the petition. Respondent shall file with the supplemental answer a copy of all portions of the state trial record that have been transcribed previously and that are relevant to a determination of the issue presented by the amendment to the petition.

If Petitioner wishes to respond to the answer, he shall do so by filing a supplemental traverse with the Court and serving it on Respondent within thirty (30) days of his receipt of the supplemental answer. Otherwise, the entire petition, i.e., all of Petitioner's claims, will be deemed submitted and ready for decision thirty days after the date Petitioner is served with Respondent's supplemental answer.

Petitioner is reminded that all communications with the Court, whether by way of formal legal motions or informal letters, must be served on Respondent by mailing a true copy of the document to Respondent's counsel.

Extensions of time are not favored, though reasonable extensions will be granted. Any motion for an extension of time must be filed no later than seven (7) days prior to the deadline sought to be extended.

The Clerk shall serve a copy of this Order and the amendment to the petition (docket no. 22) and all attachments thereto upon Respondent's attorney. The Clerk shall also serve a copy of this Order on Petitioner at his most current address.

This Order terminates Docket no. 23.

IT IS SO ORDERED.

CLAUDIA WILKEN

UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF CALIFORNIA

MARIO MERINO, Plaintiff,

v.

WARDEN, MULE CREEK STATE PRISON et al, Defendant.

Case Number: CV08-03231 CW

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.

That on November 3, 2011, I SERVED a true and correct copy(ies) of the 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.

Mario Merino V-54572

CTF-N.W.B.

252u

P.O. Box 705

Soledad, CA 93960-0705

Richard W. Wieking, Clerk

By: Nikki Riley, Deputy Clerk


Summaries of

Merino v. Martel

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
Nov 3, 2011
No. C 08-3231 CW (PR) (N.D. Cal. Nov. 3, 2011)
Case details for

Merino v. Martel

Case Details

Full title:MARIO MERINO, Petitioner, v. MICHAEL MARTEL, Warden, Respondent.

Court:UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Date published: Nov 3, 2011

Citations

No. C 08-3231 CW (PR) (N.D. Cal. Nov. 3, 2011)