Opinion
No. CIV S-09-2967 MCE GGH P
01-04-2012
CHARLES RAY SMITH, Petitioner, v. M. MCDONALD, Respondent.
ORDER
Petitioner is a state prisoner proceeding with appointed counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 13, 2011, a hearing was held before the undersigned regarding petitioner's motion for an evidentiary hearing. Further briefing was ordered in light of the Supreme Court decision in Cullen v. Pinholster, 131 S.Ct. 1388 (2011), and both parties have timely filed briefing. On December 7, 2011, the Ninth Circuit issued an opinion in Gonzalez v. Wong, 2011 WL 6061514 (9th Cir. Dec. 7, 2011), that discussed Pinholster and ultimately ordered the district court to stay the case and remand a claim back to state court for exhaustion after additional information was found in discovery during the federal proceedings.
Within 21 days both parties shall file simultaneous briefing regarding Gonzalez and its application to the instant case. The parties should also specifically address if the Cronic claim raised by petitioner in the motion for an evidentiary hearing is sufficiently distinct and new from the ineffective assistance of counsel claim in the petition, that the claim must go back to state court to be exhausted. The undersigned notes that while respondent filed briefing regarding Pinholster, the briefing did not address any of the facts or specific issues of the instant case. With respect to this exhaustion briefing, respondent should address the facts of the instant case and the issues raised by petitioner.
IT IS SO ORDERED.
Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
United States v. Cronic, 466 U.S. 648 (2002).