Local Rule L.R. 83-17.7: Procedures for Considering the Petition

L.R. 83-17.7 Procedures for Considering the Petition. Unless the Court summarily dismisses the petition under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the following schedule and procedures shall apply subject to modification by the Court. Requests for enlargement of any time period in this rule shall comply with the applicable Local Rules of the Court.

(a) Respondent shall as soon as practicable, but in any event on or before thirty (30) days from the date of service of the petition, electronically lodge the following with the Court in accordance with L.R. 5-1 and 5-4.3.1:

(i) Transcripts of the state trial court proceedings. (ii) Appellant's and respondent's briefs on direct appeal to the California Supreme Court, and the opinion or orders of that court. (iii) Petitioner's and respondent's briefs in any state court habeas corpus proceedings, and all opinions, orders and transcripts of such proceedings. (iv) An index of all materials described in paragraphs (a)(i) through (a)(iii) above. Such materials are to be marked and numbered so that they can be uniformly cited. (v) If any items identified in paragraphs (a)(i) through (a)(iv) are not available, respondent shall state when, if at all, such missing material can be filed.

(b) If counsel for petitioner claims that respondent has not complied with the requirements of paragraph (a), or if counsel for petitioner does not have copies of all the documents lodged with the Court by respondent, counsel for petitioner shall promptly file written notice thereof. Respondent shall supply copies of the missing documents forthwith, and file notice of compliance.

(c) (i) In the interest of expediting habeas death penalty cases, it is the policy of the Court to entertain unexhausted claims if the respondent expressly waives the exhaustion issue. However, if the respondent declines to waive the exhaustion issue with respect to any or all claims in the petition, prior to filing a motion, counsel for respondent must make a good faith effort to confer with counsel for petitioner regarding the exhausted status of each such claim. Unless relieved by written order of the Court upon good cause shown, counsel for petitioner must confer with counsel for respondent within seven (7) days after service of a letter requesting such conference. The respondent's letter must identify each claim that respondent contends is unexhausted, specify the basis for asserting that the claim is unexhausted, and provide any legal authority that respondent contends is dispositive of the exhausted status of that claim.

(ii) If, after the meeting, the parties continue to dispute the exhausted status of one or more claims, the respondent must file an appropriate motion no later than twenty-eight (28) days after service of the petition. In connection with any motion relating to exhaustion disputes, the parties must file a joint statement indicating (1) which claims the parties agree have been fairly presented to the state supreme court, (2) which claims the parties agree have not been fairly presented to the state supreme court, and (3) on which claims the parties disagree whether the claim has been fairly presented to the state supreme court. For each claim whose exhaustion status is in dispute, the petitioner must cite the specific pages of the state court record that petitioner contends fairly presented the claim to the state supreme court.

(d) If respondent does not intend to challenge the exhausted status of any claim in the petition, or is willing to expressly waive exhaustion as to all such claims, respondent must file an answer within twenty-eight (28) days from the date of service of the petition. Respondent must include in the answer the matters defined in Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts and must attach any other relevant documents not already lodged or filed. An answer that exceeds ten (10) pages in length, excluding exhibits, must be accompanied by an indexed table of contents setting forth the headings or subheadings contained in the body thereof.

(e) Unless otherwise ordered by the Court, within twenty-eight (28) days after respondent has filed the answer, petitioner may file a reply to the respondent's answer.

(f) No discovery shall be had without leave of the Court. A request for discovery shall be presented to the Court by way of a joint stipulation in substantially the same format as required by L.R. 37-2.1. The joint stipulation shall identify the discovery requested, a statement explaining the need for the requested discovery, and opposing counsel's position regarding the need for the requested discovery.

(g) Any request for an evidentiary hearing by either party must be made within twenty-eight (28) days from the filing of the reply to the respondent's answer, or within twenty-eight (28) days from the expiration of the time for filing the reply. The request must include a specification of the factual issues and the legal reasoning that require a hearing and a summary of the evidence of each claim the movant proposes to offer at the hearing. Any opposition must be filed within twenty-one (21) days after the request for an evidentiary hearing was filed. A reply to the opposition must be filed within fourteen (14) days after the opposition was filed.