Whalen v. Warden of San Quentin

Filing 44

ORDER VACATING HEARING Set for March 16, 2016 at 10:00 a.m. in Department 9; ORDER MODIFYING Scheduling Order signed by District Judge Lawrence J. O'Neill on 2/23/2016. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL LEE WHALEN,

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Petitioner,
v.
WARDEN, San Quentin State Prison,
Respondent.

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No. 1:14-cv-01865-LJO-SAB
DEATH PENALTY CASE
ORDER VACATING HEARING SET FOR
MARCH 16, 2016 AT 10:00 A.M. IN
DEPARTMENT 9
(Doc. No. 42)
ORDER MODIFYING SCHEDULING
ORDER

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(Doc. No. 38)

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On February 1, 2016, petitioner, through appointed counsel Jennifer Mann and Brian

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Abbington of the Office of the Federal Defender, filed a motion for stay and abeyance of these

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proceedings pursuant to Rhines v. Weber, 544 U.S. 269 (2005), pending resolution of his second

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state exhaustion petition filed in the California Supreme Court on January 27, 2016 (Case No.

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S232115). (See Doc. No. 42.)

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Petitioner set the motion for hearing on March 16, 2016 at 10:00 a.m. in Department 9

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before United States Magistrate Judge Stanley A. Boone. Pursuant to Local Rule, Respondent’s

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opposition, if any, is due not later than March 2, 2016. See Local Rule 230(c). Petitioner’s reply,

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if any, is due not later than March 9, 2016. See Local Rule 230(d).

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However, on September 14, 2015, the undersigned issued a scheduling order that states

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respondent shall file any opposition to a stay and abeyance motion on or before April 8, 2016.

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(See Doc. No. 38 at 10:23-24.)

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The undersigned, to clarify the deadlines in this case and in the interest of judicial

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economy, having considered the September 14, 2015 order, the Local Rules, and the Rules

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governing 28 U.S.C. § 2254 cases including Rule 10 thereof, HEREBY ORDERS that

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1.

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The hearing scheduled for March 16, 2016 at 10:00 a.m. in Department 9
before United States Magistrate Judge Stanley A. Boone be vacated;

2.

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Respondent’s opposition to the motion, if any, shall be filed by not later
than March 9, 2016;

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3.

Petitioner’s reply, if any, shall be filed by not later than March 16, 2016;

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4.

The matter shall then be deemed submitted and the parties will be notified

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by minute order if a hearing is necessary;
5.

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The September 14, 2015 scheduling order is modified consistent with the
foregoing and otherwise shall continue in full force and effect.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

February 23, 2016

UNITED STATES DISTRICT JUDGE
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