Ellawendy v. Monterey County Superior Court
- Beth Freeman
- 5:20-cv-02708
- U.S. District Court · Northern District of California
- 2
In Ellawendy v. Monterey County Superior Court, Judge Freeman denied premature discovery requests and granted more time to reply in a state-conviction case.
Abdelfatah Ellawendy, the state parolee and petitioner, was denied discovery at this time and received an extension to reply to the respondent’s opposition.
What happened
Abdelfatah Ellawendy filed a petition challenging his 2019 state conviction. The court had dismissed his other claims and identified only his challenge to whether his plea was voluntary as a claim that could proceed. Ellawendy later sought permission to file an amended petition, and the respondent opposed that request.
Ellawendy said he had not received the respondent’s earlier answer and requested records and a subpoena. The court explained that people challenging convictions generally do not automatically receive discovery, and it denied the requests at this time because it was still unclear which claims would proceed.
The court granted Ellawendy an extension to reply to the opposition. He must file that reply within 14 days after the order was filed. Judge Beth Labson Freeman also directed the Clerk to send him a copy of the opposition with the order.
The detailed version
- Ellawendy v. Monterey County Superior Court · No. 5:20-cv-02708
- Beth Freeman
- Oct. 14, 2021
Background
Abdelfatah Ellawendy, a state parolee proceeding without a lawyer, filed a petition under 28 U.S.C. § 2254 challenging his 2019 Monterey County conviction. The court previously determined that the only claim that could be considered was his challenge to the voluntary nature of his plea and dismissed the other claims. The respondent filed an answer addressing the merits of the original petition.
Ellawendy later filed a document titled “petition for a writ of habeas corpus.” The court treated that filing as a request for permission to file an amended petition. Because it did not appear that Ellawendy had served the filing on the respondent, the court allowed the respondent to oppose the request. The respondent filed an opposition on October 4, 2021.
Discovery requests
Ellawendy filed a notice stating that he had not received the respondent’s answer. He also requested records concerning reports he said he had filed with the CSUMB Police Department and that had been expunged in favor of Carlquest by the district attorney, along with a subpoena.
The court explained that a habeas petitioner is not entitled to discovery as a matter of ordinary course. Because it was still unclear which claims would proceed in the case, the court held that the discovery requests were premature and denied them at this time. The court did not decide whether the requested discovery would be allowed later.
Extension of time and disposition
The court’s earlier briefing order required Ellawendy to file a reply to the opposition within 14 days after receiving it. Because his latest filing did not refer to the opposition, the court concluded that he likely had not received it when he filed the notice. The court therefore granted him an extension of time to file a reply.
Ellawendy was ordered to file the reply no later than 14 days from the date of this order. The motion for permission to file an amended petition would be deemed submitted on the date the reply was due. The Clerk was directed to send Ellawendy a copy of the respondent’s opposition along with the order. Judge Beth Labson Freeman signed the order. This order did not resolve the underlying conviction challenge or decide the request to amend the petition.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.