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Myers v. Martel

United States District Court, E.D. California
May 1, 2008
No. CIV S-08-0411-FCD-CMK-P (E.D. Cal. May. 1, 2008)

Opinion

No. CIV S-08-0411-FCD-CMK-P.

May 1, 2008


ORDER


Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner's amended petition for a writ of habeas corpus (Doc. 10), filed on April 17, 2008.

The court has examined the petition as required by Rule 4 of the Federal Rules Governing Section 2254 Cases. The court had previously recommended that the original petition be summarily dismissed under Tollett v. Henderson, 411 U.S. 258 (1973) because petitioner stated in the petition that he pleaded guilty and none of his claims suggested an exception to the Tollett rule. On April 7, 2008, the court vacated its findings and recommendations in light of petitioner's objections thereto and instructed petitioner to file an amended petition. The court warned petitioner that it would again recommend summary dismissal unless he raised a claim relating to his guilty plea or otherwise falling within an exception to the Tollett rule. In the amended petition, petitioner now appears to claim that his trial counsel was ineffective with respect to his guilty plea because petitioner does not speak English and "counsel told me how to answer" when the judge asked him questions regarding his plea. Petitioner asserts that he is innocent and would not have pleaded guilty but for counsel's instructions to do so. It does not plainly appear from the petition and any attached exhibits that petitioner is not entitled to relief. See id. Respondent, therefore, will be directed to file a response to petitioner's petition. See id. If respondent answers the petition, such answer must comply with Rule 5 of the Federal Rules Governing Section 2254 Cases. Specifically, an answer shall be accompanied by any and all transcripts or other documents relevant to the determination of the issue(s) presented in the petition. See id.

Accordingly, IT IS HEREBY ORDERED that:

1. Respondent is directed to file a response to petitioner's amended petition within 60 days from the date of service of this order;

2. Petitioner's traverse or reply (if respondent files an answer to the petition), if any, or opposition or statement of non-opposition (if respondent files a motion in response to the petition) shall be filed and served within 30 days of service of respondent's response; and

3. The Clerk of the Court shall serve a copy of this order, together with a copy of petitioner's amended petition for a writ of habeas corpus on Michael Patrick Farrell, Senior Assistant Attorney General.


Summaries of

Myers v. Martel

United States District Court, E.D. California
May 1, 2008
No. CIV S-08-0411-FCD-CMK-P (E.D. Cal. May. 1, 2008)
Case details for

Myers v. Martel

Case Details

Full title:DARREL L. MYERS, Petitioner, v. MIKE MARTEL, Respondent

Court:United States District Court, E.D. California

Date published: May 1, 2008

Citations

No. CIV S-08-0411-FCD-CMK-P (E.D. Cal. May. 1, 2008)