Reid v. D. K. Sisto

Filing 24

ORDER signed by Magistrate Judge John L. Weinberg on 2/24/10 VACATING 23 Order Deferring Preparation of Report and Recommendation. (Manzer, C)

01 02 03 04 05 06 KEVIN REID, 07 08 09 10 11 12 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA ) ) Petitioner, ) CASE NO. 2:07-cv-01409-RSL-JLW ) v. ) ) D.K. SISTO, Warden, ) ORDER VACATING DEFERRAL OF ) REPORT AND RECOMMENDATION Respondent. ) _____________________________________ ) This Court entered an "Order Deferring Preparation of Report and Recommendation"

13 on October 30, 2009. (See Docket 23.) As of that date, this case had already been pending 14 for a substantial period of time. This Court presumed a decision in Hayward v. Marshall, a 15 case pending for decision before a limited en banc panel in the U.S. Court of Appeals for the 16 Ninth Circuit, would be forthcoming in a reasonable period of time. 512 F.3d 536 (9th Cir. 17 2008), reh'g en banc granted, 527 F.3d 797 (9th Cir. 2008). Hayward presents issues 18 sufficiently similar to those in this case that it seems likely the en banc decision in Hayward 19 will have significant implications for the resolution of petitioner's case. 20 Hayward was argued and submitted on June 24, 2008, and thus it has been over

21 nineteen (19) months since its submission, and almost four (4) months since this Court 22 deferred action in this case. As of the date of this Order, Hayward remains undecided, and

ORDER VACATING DEFERRAL OF REPORT AND RECOMMENDATION- 1

01 this Court has no information as to when an opinion might be forthcoming. 02 Fairness to the parties requires that this Court move ahead on the merits of this case.

03 The "Order Deferring Preparation of Report and Recommendation" is therefore VACATED. 04 This Court will file a Report and Recommendation in the very near future. 05 In deciding to vacate the "Order Deferring Preparation of Report and

06 Recommendation," the Court is mindful of the need to balance competing interests, as defined 07 in Lockyer v. Mirant Corp., 398 F.3d 1098, 1110-11 (9th Cir. 2005) and Yong v. INS, 208 08 F.3d 1116, 1120-21 (9th Cir. 2000), and as applied by Judge Wallace in Nelson v. Sisto, 2009 09 WL 2579194 (E.D. Cal. 2009). This Order to proceed is based primarily upon two facts. 10 First, the petition in this case was originally filed on July 16, 2007. (See Docket 1.) 11 Petitioner, who remains confined, has waited over thirty-one (31) months for the District 12 Court to address the merits of his petition. Secondly, the filing of a Report and 13 Recommendation by the U.S. Magistrate Judge, while it serves to advance the case toward a 14 ruling, does not constitute a final disposition by the District Court. If Hayward is decided 15 while the Report and Recommendation is pending before the U.S. District Judge, he will be 16 able to take the decision into account in ruling upon this case. 17 18 19 20 21 22 DATED this 24th day of February, 2010.

JOHN L. WEINBERG United States Magistrate Judge

A

ORDER VACATING DEFERRAL OF REPORT AND RECOMMENDATION- 2