(HC) Yocom v. Allison ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL ALLEN YOCOM, Case No. 1:21-cv-00187-NONE-HBK 12 Petitioner, ORDER DENYING PETITIONER’S MOTION FOR EVIDENTIARY HEARING 13 v. (Doc. No. 46) 14 KATHLEEN ALLISON, ORDER DENYING PETITIONER’S MOTION 15 Respondent. FOR RELEASE FROM CUSTODY 16 (Doc. No. 46) 17 ORDER TO SHOW CAUSE WHY SANCTIONS SHOULD NOT BE IMPOSED 18 ON PETITIONER 19 ORDER TO FILE REPLY OR STAND ON INCORPORATED REPLY IN MOTION 20 21 22 Petitioner Michael Allen Yocom, a state prisoner proceeding pro se, has pending a 23 petition for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1). Before the Court is 24 Petitioner’s “emergency motion for teleconference or actual court hearing” and “demand for 25 immediate release,” which the Court construes as a motion for an evidentiary hearing and release 26 from custody. (Doc. No. 46). As explained below, the Court denies Petitioner the relief 27 requested in his motion and orders him to show cause why sanctions should not be imposed for 28 his continued filing of duplicitous motions. 1 1. Court Construes Motion to Incorporate Petitioner’s Reply 2 At the outset, the Court notes the pleading is titled “Emergency Motions” and “Initial 3 Reply to Respondent’s Answer.” (Doc. No. 46 at 1). In his pleading, Petitioner addresses 4 Respondent’s Answer to the Petition and advances arguments in rebuttal to the Answer. (See 5 generally Doc. No. 46). Thus, the Court construes this filing as incorporating Petitioner’s reply 6 or traverse to Respondent’s Answer. Nonetheless, Petitioner fashions the pleading as his “Initial 7 Reply to Respondent’s Answer.” (Id. at 1). The Rules Governing Section 2254 Cases do not 8 provide petitioners with multiple opportunities to reply to an answer. See R. Governing Section 9 2254 Cases Rule 5(e). In an abundance of caution, the Court will permit Petitioner the 10 opportunity to file a free-standing reply titled “Reply to Respondents’ Answer” within 21 days 11 from receipt of this Order, to the extent Petitioner does not intend the pleading to incorporate his 12 reply. 13 2. Motion for Evidentiary Hearing 14 Petitioner seeks an emergency evidentiary hearing. (Doc. No. 42). Petitioner has 15 previously moved for an evidentiary hearing five times, all of which have been denied. (Doc. 16 Nos. 8, 20, 33, 40, 42). Evidentiary hearings are granted only under limited circumstances in 17 habeas proceedings. See 28 U.S.C. § 2254(e)(2)(A)(ii). Although Respondent has now filed an 18 answer to the petition, the Court has not yet reviewed the briefing. The Court will review the 19 briefing and make findings and recommendations in due course. If the Court determines that an 20 evidentiary hearing is warranted, it will schedule one at that time. See Rules Governing Section 21 2254 Cases, R. 8(a). 22 3. Motion for Release from Custody 23 Incorporated within Petitioner’s motion is a second request for release from custody. 24 (Doc. Nos. 42 at 1, 46 at 1). As stated in this Court’s June 8, 2021 order, “[b]ail pending a 25 decision in a habeas case is reserved for extraordinary cases involving special circumstances or a 26 high probability of success.” Land v. Deeds, 878 F.2d 318, 318 (9th Cir. 1989); (Doc. No. 44 at 27 2). The Court finds Petitioner has not demonstrated special circumstances warranting his release 28 or a high probability of success on the merits of his petition. Accordingly, his request is denied. 1 4. Order to Show Cause 2 Petitioner has filed multiple motions seeking the same forms of relief. (See e.g. Doc. Nos. 3 6, 14, 18, 27, 31, 32, 34, 42). On May 26, 2021 and June 8, 2021, the Court warned the Petitioner 4 | if he persists in filing further repetitive motions, he may be subject to sanctions. (Doc. No. 40, 5 | 44). Petitioner has again filed another duplicitous motion. Accordingly, the Court will order 6 | Petitioner to show cause why he should not be subject to sanctions. 7 Accordingly, it is ORDERED: 8 1. Petitioner’s motion for evidentiary hearing (Doc. No. 46) is DENIED. 9 2. Petitioner’s motion for release from custody (Doc. No. 46) is DENIED. 10 3. Within fourteen (14) days of the date of receipt of this order, Petitioner is ordered to 11 show cause why he should not be subject to sanctions. 12 4, Within twenty-one (21) days of receipt of this Order, Petitioner shall file a Reply to 13 Respondent’s Answer. If Petitioner does not file a separate free-standing Reply, the Court 14 will construe the reply incorporated in Petitioner’s Motion (Doc. No. 46) as his Reply to 15 Respondent’s Answer to Petition. 16 '7 | Dated: __July 9, 2021 law Nh. fareh Base □□□ 18 HELENA M. BARCH-KUCHTA 9 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28