Stankewitz v. Brown, et al

Filing 614

ORDER Granting Respondent's Request for Stay of Judgment Pending Appeal signed by Chief Judge Anthony W. Ishii on 01/12/2010. Case Stayed.(Flores, E)

1 2 3 4 5 6 7 8 D O U G L A S RAY STANKEWITZ, 9 10 12 13 14 15
T h is matter is before the Court pursuant to a Request, filed by Respondent vs. o f San Quentin State Prison, P e t i t io n e r , ) ) ) ) ) ) ) ) ) ) ) C a s e No. 1:91-cv-616-AWI D E A T H PENALTY CASE O r d e r Granting Respondent's R e q u e s t for Stay of Judgment P e n d in g Appeal U N IT E D STATES DISTRICT COURT E A S T E R N DISTRICT OF CALIFORNIA

11 R O B E R T WONG, Acting Warden
R e s p o n d e n t.

16 R o b e r t Wong ("the Warden"), seeking a stay of the judgment in this case pending 17 a p p e a l, under Federal Rules of Appellate Procedure Rule 8. The petition for writ 18 o f habeas corpus filed by Petitioner Douglas Ray Stankewitz ("Stankewitz") was 19 g r a n te d September 22, 2009, and the Warden's motion for reconsideration was 20 d e n ie d October 15, 2009. The Warden filed a Notice of Appeal January 8, 2010, 21 c o n cu r r e n tly with the request for stay of the judgment pending resolution of 22 a p p e a l. The Warden asserts that under Rule 8 of the Federal Rules of Appellate 23 P r o c e d u r e , this Court may stay execution of a judgment. The Warden contends a 24 s ta y will allow for the orderly consideration of the appeal and states that counsel 25 fo r Stankewitz does not oppose the stay. 26
A lth o u g h the filing of a notice of appeal generally vests jurisdiction over

1 th e cause appealed in the Court of Appeals, United States v. El-O-Pathic Pharmacy, 2 1 9 2 F.2d 62, 79 (9th Cir. 1951), it has long been recognized that a lower court 3 r e se r v e s the power to make orders appropriate to preserve the status quo while 4 th e appeal is pending. Newton v. Consolidated Gas Co., 258 U.S. 165, 177 (1922); In 5 re Federal Facilities Realty Trust, 227 F.2d 651, 654 (7th Cir. 1955). Consistent with 6 th is principle, Rule 8(a) of the Federal Rules of Appellate Procedure requires that 7 a motion for a stay pending appeal be presented initially in the district court. 8 10 11 IT IS SO ORDERED. 12 13 DATED: 14 15 16 17 18 19 20 21 22 23 24 25 26
O G r a n tin g S ta y J u d g m n t2 S tn k

T h e Warden's request for a stay of judgment pending appeal is

9 GRAN TED .

January 12, 2010 /s/ Anthony W. Ishii Chief United States District Judge

2