Bathen v. Allison

Opinion

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BENJAMIN LEE BATHEN, Case No.: 20cv2063-MMA(MSB)

12 Plaintiff, ORDER SETTING BRIEFING SCHEDULE 13 v. 14 KATHLEEN ALLISON, et al., 15 Respondents. 16 17 On October 20, 2020, Petitioner Benjamin Lee Bathen, a state prisoner 18 proceeding pro se, filed a Petition for Writ of Habeas Corpus. (ECF No. 1.) The Petition 19 contained the following three claims: (1) “Evidence was insufficient to support the 20 element of immediate prospect of execution of the threats”; (2) “Trial court erred when 21 it failed to instruct on the lesser included offense of attempted criminal threat”; and 22 (3) “Ineffective assistance of counsel for failure to investigate a mental health defense 23 based on antidepressant causing violence or threats as a side effect.” (Id. at 6-8.) On 24 October 20, 2020, the Court issued an “Order Requiring Response to Petition (28 U.S.C. 25 § 2254).” (ECF No. 2.) The Court required Respondent to respond to Petitioner’s 26 Petition with a motion to dismiss or an answer on or before December 21, 2020. (Id.) 27 Petitioner was ordered to respond to the motion to dismiss or answer on or before 2 pending the exhaustion of state remedies and to hold this action in abeyance until those 3 remedies are exhausted. (ECF No. 3.) Petitioner asserted that Claim 3 in his federal 4 Petition alleging ineffective assistance of trial counsel was not exhausted because he 5 had raised the claim in a habeas petition filed in the California Supreme Court, which 6 was still pending. (Id. at 2.) In light of Petitioner’s filing, the Court vacated its briefing 7 schedule issued on October 20, 2020, and issued a briefing schedule on Petitioner’s 8 motion for stay and abeyance (ECF No. 4.) On February 10, 2021, the District Court 9 issued an order granting Petitioner’s motion to stay the action and hold it in abeyance 10 pursuant to Rhines v. Webber, 544 U.S. 269 (2005). (ECF No. 9.) 11 On May 24, 2021, Petitioner filed a Status Report, stating that the California 12 Supreme Court denied his petition, and he was not challenging that ruling via petition 13 for writ of certiorari in the United States Supreme Court. (ECF No. 10.) On the same 14 day, Petitioner also filed a “Memorandum of Points and Authorities in Support of the 15 Petition for Writ of Habeas Corpus.” (ECF No. 11.) On May 26, 2021, the District Court 16 issued an order construing Petitioner’s Status Report as a motion to lift the stay. (ECF 17 No. 12 at 1.) The District Court granted Petitioner’s motion and lifted the stay. (Id. at 1- 18 2.) 19 Accordingly, the Court issues the following briefing schedule: 20 1. If Respondent contends the Petition can be decided without the Court’s 21 reaching the merits of Petitioner’s claims (e.g., because Respondent contends Petitioner 22 has failed to exhaust any state remedies as to any ground for relief alleged in the 23 Petition, or that the Petition is barred by the statute of limitations, or that the Petition is 24 subject to dismissal under Rule 9 of the Rules Governing § 2254 Cases, or that all of the 25 claims are procedurally defaulted, or that Petitioner is not in custody), Respondent must 26 file a motion to dismiss pursuant to Rule 4 of the Rules Governing § 2254 Cases no later 27 than July 6, 2021. The motion to dismiss must not address the merits of Petitioner’s 2 to dismiss is filed, Respondent must lodge with the Court all records bearing on 3 Respondent’s contention in this regard. A hearing date is not required for the motion to 4 dismiss. 5 2. If Respondent files a motion to dismiss, Petitioner must file his opposition, 6 if any, to the motion no later than August 9, 2021. At the time the opposition is filed, 7 Petitioner must lodge with the Court any records not lodged by Respondent which 8 Petitioner believes may be relevant to the Court’s determination of the motion. 9 3. Unless the Court orders otherwise, Respondent must not file a reply to 10 Petitioner’s opposition to a motion to dismiss. If the motion is denied, the Court will 11 afford Respondent adequate time to respond to Petitioner’s claims on the merits. 12 4. If Respondent does not contend that the Petition can be decided without 13 the Court reaching the merits of Petitioner’s claims, Respondent must file and serve an 14 answer to the Petition, and a memorandum of points and authorities in support of such 15 answer, pursuant to Rule 5 of the Rules Governing § 2254 Cases no later than July 6, 16 2021. At the time the answer is filed, Respondent must lodge with the Court all records 17 bearing on the merits of Petitioner’s claims. The lodgments must be accompanied by a 18 notice of lodgment which must be captioned “Notice of Lodgment in 28 U.S.C. § 2254 19 Habeas Corpus Case — To Be Sent to Clerk’s Office.” Respondent must not combine 20 separate pleadings, orders or other items into a combined lodgment entry. Each item 21 must be numbered separately and sequentially. 22 5. Petitioner may file a traverse to matters raised in the answer no later than 23 August 9, 2021. Any traverse by Petitioner (a) must state whether Petitioner admits or 24 denies each allegation of fact contained in the answer; (b) must be limited to facts or 25

26 27 1 If Respondent contends Petitioner has failed to exhaust any state remedies as to any ground for relief 1 || arguments responsive to matters raised in the answer; and (c) must not raise new 2 ||grounds for relief that were not asserted in the Petition. Grounds for relief withheld 3 || until the traverse will not be considered. No traverse can exceed ten (10) pages in 4 ||length absent advance leave of Court for good cause shown. 5 6. A request by a party for an extension of time within which to file any of the 6 || pleadings required by this Order must be made at least seven (7) days in advance of the 7 || due date of the pleading, and the Court will grant such a request only upon a showing of 8 || good cause. Any such request must be accompanied by a declaration under penalty of 9 || perjury explaining why an extension of time is necessary. 10 7. Unless otherwise ordered by the Court, this case will be deemed submitted 11 || on the day following the date Petitioner’s opposition to a motion to dismiss and/or his 12 || traverse is due. 13 8. Every document delivered to the Court must include a certificate of service 14 || attesting that a copy of such document was served on opposing counsel (or on the 15 || opposing party, if such party is not represented by counsel). Any document delivered to 16 Court without a certificate of service will be returned to the submitting party and 17 || will be disregarded by the Court. 18 9. Petitioner must immediately notify the Court and counsel for Respondent 19 || of any change of Petitioner’s address. If Petitioner fails to keep the Court informed of 20 || where Petitioner may be contacted, this action will be subject to dismissal for failure to 21 || prosecute. 22 IT IS SO ORDERED. 23 ||Dated: June 1, 2021 _ Sx. 24 4 L <—{—\. 35 Honorable Michael S. Berg United States Magistrate Judge 26 27 28