Embry v. Sinclair

Filing 19

ORDER by Judge Karen L Strombom granting 11 Motion to Stay; granting 18 Motion for Extension of Time to Answer. Petitioner shall advise the Court within thirty (30) days of receiving a final State court ruling.(MET) cc: petitioner

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 9 RANDALL MARQUISE EMBRY, NO. C14-5360 BHS-KLS Petitioner, 10 11 12 STEVE SINCLAIR, Respondent. 13 14 ORDER GRANTING MOTIONS TO STAY AND FOR EXTENSION v. Petitioner Randall Marquise Embry moves to stay his federal habeas petition pending 15 the outcome of a state court proceeding. Dkt. 11. Respondent Steve Sinclair is not opposed to 16 the stay and moves for an extension of time to respond to the federal habeas petition until 45 17 days after the state court has issued its decision. Dkts. 17 and 18. The Court finds that this 18 matter should be stayed pending resolution of Mr. Embry’s state court proceedings and the 19 motion for extension granted. 20 DISCUSSION 21 22 Mr. Embry’s federal habeas petition challenges his custody under a state court 23 judgment and sentence imposed for his conviction of attempted first degree murder, conspiracy 24 to commit first degree murder, and first degree unlawful possession of a firearm. Dkt. 9. He 25 raises four grounds of prejudicial admission of evidence regarding gang membership, 26 ORDER - 1 1 2 3 prejudicial joinder of co-defendants, insufficient evidence, and sentencing error regarding the firearm enhancement. Id. Mr. Embry moves to stay the federal proceedings based on a recently filed personal restraint petition in the Washington Court of Appeals, in which he raises 4 5 6 7 multiple grounds, including the four that are at issue in his federal habeas petition. Dkt. 17, Exhibit 1 (Personal Restraint Petition, Washington Court of Appeals Case No. 46193-5-II). The Court may stay a petition where the stay would be a proper exercise of discretion. 8 Rhines v. Weber, 544 U.S. 269, 276 (2005); see also Fetterly v. Paskett, 997 F.2d 1295 (9th 9 Cir. 1993); Calderon v. United States Dist. Court for Northern Dist. of California, 144 F.3d 10 618, 620 (9th Cir. 1998); Anthony v. Cambra, 236 F.3d 568 (9th Cir. 2000). 11 Mr. Embry contends that a stay is necessary so that he may litigate his recently filed 12 13 personal restraint petition in the Washington appellate courts. He states that he filed his federal 14 petition to avoid running afoul of the federal statute of limitations. Dkt. 11. Respondent does 15 not object to the requested stay but asks that the Court grant an extension of time to answer the 16 petition such that the answer becomes due 45 days after the stay of proceedings is lifted. Dkts. 17 17 and 18. 18 Accordingly, it is ORDERED: 19 (1) Petitioner’s motion to stay (Dkt. 11) is GRANTED and this matter is STAYED 20 21 22 23 24 25 pending resolution of the state court proceedings. Petitioner shall advise the Court within thirty (30) days of receiving a final State court ruling. (2) Respondent’s motion for extension (Dkt. 18) is GRANTED. Respondent shall file his Answer within 45 days after the stay in this matter is lifted. The Answer will be treated in accordance with Local Rule CR 7. Accordingly, upon receipt of the Answer the Clerk will 26 ORDER - 2 1 2 3 note the matter for consideration on the fourth Friday after the answer is filed, Petitioner may file and serve a response not later than on the Monday immediately preceding the Friday appointed for consideration of the matter, and Respondent may file and serve a reply brief not 4 5 6 7 8 later than the Friday designated for consideration of the matter. (3) The Clerk shall send copies of this Order to Petitioner and counsel for Respondent. DATED this 7th day of July, 2014. 9 A 10 11 Karen L. Strombom United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER - 3