Smith v. Kane, et al

Filing 94

ORDER signed by Senior Judge Lawrence K. Karlton on 11/02/10 ORDERING that the 93 Request is GRANTED; habeas corpus relief as to petitioner's claim of jury coercion, the writ of habeas corpus in the above-captioned case hereby ISSUES. The con viction of Mr. Smith on Count Four in Superior Court Number 97F07219 is VACATED. Unless the state commences a retrial w/i 45 days, the conviction on Count Four shall be DISMISSED and Mr. Smith shall be RELEASED from custody on the sentence imposed on that count. (Benson, A.)

(HC) Smith v. Kane, et al

Doc. 94

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DANIEL J. BRODERICK, Bar #89424 Federal Defender DAVID M. PORTER, Bar #127024 Assistant Federal Defender 801 I Street, 3rd Floor Sacramento, California 95814 Telephone: [phone] Attorney for Petitioner ANTHONY SMITH, Jr.

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

ANTHONY SMITH, Jr.,

) ) Petitioner, ) ) v. ) ) ROBERT K. WONG, Warden, ) ) Respondent. ) ) _______________________________ )

NO. Civ. S 03-1871 LKK KJM UNOPPOSED REQUEST TO ISSUE WRIT OF HABEAS CORPUS; ORDER Judge: Honorable LAWRENCE K. KARLTON

Petitioner, ANTHONY SMITH, Jr., by and through his counsel, Assistant Federal Defender David M. Porter, requests this Court issue the order lodged herewith directing the issuance of the writ of habeas corpus in the above-entitled matter. On August 3, 2007, this Court issued an order adopting the findings and recommendations of the magistrate judge that Mr. Smith's petition for writ of habeas corpus be granted as to the claim of jury coercion. CR #68.1 Judgment was entered the same day. CR ## 70, 72. CR #69. Both

parties filed appeals.

Mr. Smith was convicted of multiple counts. His claim of jury coercion affected only Count Four, for which he received a life sentence. This Court rejected his claims regarding other counts of conviction, for which he received determinate aggregate consecutive terms totaling twenty years.

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Dockets.Justia.com

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On September 8, 2009, the Ninth Circuit Court of Appeals affirmed the judgment of this Court in all respects. 580 F.3d 1071. On

November 30, 2009, the Ninth Circuit issued the mandate, which was spread upon the docket of this Court on December 1, 2009. CR #84.

On November 1, 2010, the Supreme Court of the United States denied the Warden's petition for writ of certiorari.2 No. 09-1031.

On November 2, 2010, the undersigned contacted counsel for Respondent, who graciously indicated that he had no objection to this request. Accordingly, pursuant to 28 U.S.C. § 2243, Mr. Smith requests this Court enter the order lodged herewith issuing the writ of habeas corpus. Dated: November 2, 2010 Respectfully submitted, DANIEL J. BRODERICK Federal Defender

/s/ David M. Porter DAVID M. PORTER Assistant Federal Defender Attorney for Petitioner ANTHONY SMITH, Jr.

During the interim, Mr. Smith asked this Court to issue the writ of habeas corpus. CR #85. While the magistrate judge agreed with Mr. Smith that the only appropriate form of relief would be "a partial grant of the petition," CR #87 at 2 (citing Harvest v. Castro, 531 F.3d 737, 744 (9th Cir. 2008)), she acceded to Warden's request that the court "hold its order in abeyance" until certiorari proceedings were concluded. Id. at 3. 2

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

ANTHONY SMITH, Jr.,

) NO. Civ. S 03-1871 LKK KJM P ) Petitioner, ) ORDER ) v. ) ) ROBERT K. WONG, Warden, ) ) Respondent. ) _______________________________ ) ORDER Pursuant to the mandate of the United States Court of Appeals for the Ninth Circuit in the case of Anthony Bernard Smith, Jr. v. B. Curry, No. 07-16875, which affirmed this Court's Judgment of August 3, 2007, granting habeas corpus relief as to petitioner's claim of jury coercion, the writ of habeas corpus in the above-captioned case hereby ISSUES. The conviction of Mr. Smith on Count Four in Superior Court Number 97F07219 is VACATED. Unless the state commences a retrial within

forty-five (45) days from the date of this order, the conviction on Count Four shall be DISMISSED and Mr. Smith shall be RELEASED from custody on the sentence imposed on that count. IT IS SO ORDERED. Dated: November 2, 2010 _______________________________

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