(DP) Slaughter v. Stokes

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA MICHAEL COREY SLAUGHTER, Case No. 1:05-cv-00922-KES 12 Petitioner, DEATH PENALTY CASE 13 v. ORDER GRANTING UNOPPOSED THIRD MOTION TO MODIFY CASE SCHEDULE TAMMY L. CAMPBELL, Warden, California State Prison - Corcoran, Respondent.

18 INTRODUCTION 19 Before the Court is a motion (Doc. 191) brought by Petitioner, a condemned state prisoner, through counsel Assistant Federal Defenders Jennifer Mann and Alyssa Mack, to modify the case schedule to permit filing of a Third Supplemental Motion for Expansion of the Record and Exhibits 2F and 2G appended thereto (Docs. 191-1, 191-2, and 191-3 respectively, collectively the “Third Supplemental Motion”), in support of the operative Second Amended Petition for Writ of Habeas Corpus (Doc. 82).

25 Counsel for Petitioner represents that counsel for Respondent, Deputy Attorney General Joseph Penney, does not oppose the proposed modification of the case schedule to permit filing of the Third Supplemental Motion. (Doc. 191 at 10.)1 1 The Court, finding the matter amendable to resolution on the papers, GRANTS the requested relief, for the reasons discussed below.2 3 BACKGROUND 4 The record reflects Petitioner’s 1991 conviction and death sentence in Stanislaus County Superior Court case number 254100. In 2002, the California Supreme Court affirmed Petitioner’s conviction on direct appeal. In 2003, the United States Supreme Court denied certiorari.

7 In 2005, Petitioner began this federal proceeding pursuant to 28 U.S.C. § 2254. That same year, Petitioner filed in the case a Protective Petition pursuant to Pace v. DiGuglielmo, 544 9 U.S. 408 (2005). (Doc. 8.) In 2014, after multiple exhaustion stays and state court denial of his three post-conviction petitions, Petitioner filed in the case his Second Amended Petition.3 Respondent filed his Answer to the Second Amended Petition that same year. (Doc. 97.)

12 In 2020, the parties completed merits briefing of the Second Amended Petition.

13 Petitioner filed three evidentiary development motions: (1) a November 2, 2020 Corrected Motion for Evidentiary Hearing, Expansion of the Record and Discovery (Doc. 146, hereinafter the “Corrected Motion”), (2) an October 17, 2023 Supplemental Motion for Evidentiary Hearing and Expansion of the Record (Doc. 174, hereinafter the “Supplemental Motion”), and (3) a March 4, 2024 Second Supplemental Motion for Expansion of the Record and Judicial Notice (Doc. 182, hereinafter the “Second Supplemental Motion”). These Motions have been fully briefed.4 (See Docs. 151. 152, 176, 184, 189, 190.)

20 DISCUSSION 21 In determining whether to modify case scheduling, the Court considers the “good cause” standard set out by Federal Rule of Civil Procedure 16(b)(4). Rule 16(b)(4) provides that a schedule may be modified only for good cause and with the judge's consent. As this Court has 2 The Court previously vacated the August 6, 2024 hearing. (Doc. 192.)

25 3 The state supreme court issued an OSC for one claim regarding a clerical error in the abstract of judgment, which was subsequently discharged following correction of the clerical error. This Court dismissed the corresponding federal claim (i.e. Claim 47) in 2015, upon stipulation of the parties. (See Doc. 100.)

27 4 In 2022, the Court granted Petitioner’s request for supplemental briefing of the Corrected Motion to address recent Supreme Court decisions. The parties completed this supplemental briefing in early 2023. (See Docs. 158, 163, 164.)

1 observed: 2 The “good cause” requirement focuses primarily on the party's diligence and its reasons for not acting sooner. In re W. States 3 Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 737 (9th Cir. 2013) (citing Johnson v. Mammoth Recreations Inc., 975 F.2d 604, 4 609 (9th Cir. 1992)), aff'd on unrelated question sub nom. Oneok, Inc. v. Learjet, Inc., 575 U.S. 373, 135 S.Ct. 1591, 191 L.Ed.2d 511 5 (2015).

6 City of Lincoln v. Cnty. of Placer, 2023 WL 2776091 at *6 (E.D. Cal. Apr. 4, 2023). The Court may modify the pretrial schedule “if it cannot reasonably be met despite the diligence of the party seeking the extension.” Johnson, 975 F.2d at 609 (citing to Fed. R. Civ. P. 16 advisory committee's notes (1983 amendment)); see also 6A Wright, Miller & Kane, Federal Practice and Procedure § 1522.1 at 231 (2d ed. 1990) (“good cause” means scheduling deadlines cannot be met despite party's diligence).

12 Here, the Court finds good cause to grant Petitioner’s unopposed request to modify the case schedule to permit filing of the Third Supplemental Motion.

14 Petitioner asserts the Third Supplemental Motion is a necessary response to Respondent’s previously filed opposition to expansion of the record with evidence of trial counsel Fred Canant’s ethnic animus. (Doc. 191 at 4 citing Docs. 168, 172-2, 174, 174-2, 176.) Particularly, Petitioner asserts the Third Supplemental Motion relates to the Court’s ability to consider non- record, recently developed evidence proffered therewith (i.e. Exhibits 2F and 2G) in its merits determination of federal habeas Claims 1.J and 11.D, which allege Canant was ineffective in part because he harbored racial and ethnic prejudices.

21 The Court is satisfied that, notwithstanding the reasonable diligence of counsel for Petitioner, the need to develop and proffer the Declaration of Connie Padilla Serrano (Exhibit 2F) and the Declaration of Adam Brown (Exhibit 2G) became apparent only during the parties’ briefing of the noted evidentiary development Motions; and that Ms. Serrano’s health issues delayed that process. (See Doc. 191 at 4, 7-8); see also Kuschner v. Nationwide Credit, Inc., 256 26 F.R.D. 684, 687 (E.D. Cal. 2009) (“Good cause may be found to exist where the moving party shows that it diligently assisted the court with creating a workable scheduling order, that it is unable to comply with the scheduling order's deadlines due to matters that could not have | reasonably been foreseen at the time of the issuance of the scheduling order, and that it was | diligent in seeking an amendment once it became apparent that the party could not comply with | the scheduling order.”).

4 Respondent’s non-opposition to the instant motion to modify the case schedule appears | implicitly to concede good cause and the absence of prejudice should the requested relief be | granted. Moreover, the yet to be briefed Third Supplemental Motion relates to allegations raised | inthe Second Amended Petition and development thereof through the previously filed | Supplemental and Second Supplemental Motions, reasonably suggesting the absence of prejudice | should relief be granted on the instant scheduling motion.

10 THEREFORE, the Court GRANTS Petitioner’s unopposed motion to modify the case | schedule to permit filing of the Third Supplemental Motion (Doc. 191).

12 The CLERK is directed to FILE on the public docket CM/ECF System Documents 13 Number 191-1, 191-2, and 191-3 AS the THIRD SUPPLEMENTAL MOTION FOR | EXPANSION OF THE RECORD.

15 RESPONDENT shall FILE any opposition to the Third Supplemental Motion not later | than SIXTY (60) DAYS following the filed date thereof.

17 PETITIONER shall FILE any reply to the opposition by not later than SIXTY (60) DAYS | following the filed date thereof.

29 | IT IS SO ORDERED. _ 21 Dated: _ June 21, 2024 4A .

0 UNITED STATES DISTRICT JUDGE