Sargent v. Clay

Filing 19

ORDER signed by Circuit Judge N. Randy Smith on 2/8/2010 ORDERING that this action be administratively stayed pending the Ninth Circuit's decision in Hayward v Marshall.(Matson, R)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

JE F F R E Y SCOTT SARGENT, Petitioner,

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ORDER v. I .D . CLAY, Warden Respondent.

P etitio n er Sargent is a state prisoner proceeding pro se with a petition for w rit of habeas corpus pursuant to 28 U.S.C. § 2254. Sargent challenges the d ecisio n by the California Board of Parole (CPB) finding him unsuitable for p a r o le . After Sargent's petition, the Ninth Circuit Court of Appeals granted reh earin g en banc in Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008), reh'g en b a n c granted, 527 F.3d 797 (9th Cir. 2008), which may directly impact Sargent's p etitio n . Accordingly, on January 6, 2010, this court ordered the parties to show cau se why this action should not be administratively stayed pending the Ninth C ir cu it's resolution of Hayward.

R esp o n d en t filed his response on January 7, 2010, and Petitioner filed his r es p o n s e on January 20, 2010. Respondent agrees that the matter should be stayed p e n d in g the outcome of Hayward. Petitioner, however, argues that, n o tw ith s ta n d in g the pendency of Hayward, this court should act on his petition, b ecau se the primary issue is the plea bargain that he entered into. However, the CPB has found Petitioner unsuitable for parole and the issues ra ised in his petition involve the sufficiency of evidence to support the state's d en ial of his parole, notwithstanding the plea bargain. The decision in Hayward co u ld directly impact his claim. Accordingly, IT IS HEREBY ORDERED that this actio n be administratively stayed pending the Ninth Circuit's decision in Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008).

DATED:

F eb ru a ry 8, 2010

____________________________ H o n o rab le N. Randy Smith N in th Circuit Court of Appeals Judge

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