Stringer v. Marshall

Filing 49

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/9/2014 ORDERING that, witin 60 days, respondent shall lodge the state court record with the court.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LONNIE DAVID STRINGER,

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Petitioner,

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No. 2:09-cv-2980-GEB-EFB P

v.
JOHN MARSHALL,

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ORDER

Respondent.

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Petitioner is a state prisoner with counsel seeking a writ of habeas corpus. See 28 U.S.C.

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§ 2254. On March 31, 2011, this court granted respondent’s motion to dismiss the action as

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barred by the statute of limitations contained in the Anti-terrorism and Effective Death Penalty

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Act (“AEDPA”). ECF No. 30. Later that year, the U.S. Court of Appeals for the Ninth Circuit

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concluded that AEDPA’s limitations provisions are subject to an equitable exception for claims of

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actual innocence. Lee v. Lampert, 653 F.3d 929 (9th Cir. 2011) (en banc). The United States

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Supreme Court agreed in 2013. McQuiggin v. Perkins, __ U.S. __, 133 S. Ct. 1924, 1928, 1933

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(2013).
On appeal, the Ninth Circuit affirmed this court’s determinations that: (1) petitioner is not

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entitled to statutory tolling; (2) the federal statute of limitations began to run when petitioner’s

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conviction became final; and (3) petitioner is not entitled to equitable tolling. ECF No. 38.

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However, because this court did not consider whether petitioner qualified for the equitable

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exception based on actual innocence, the Ninth Circuit remanded the case for consideration of

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that single issue, citing McQuiggin. Id.

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The court finds it necessary to review the state court record of petitioner’s criminal case to

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determine whether petitioner has made the necessary showing. Accordingly, within 60 days of

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the date of this order, respondent shall lodge the state court record with the court. Rule 5(c), 28

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U.S.C. foll. § 2254.

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So ordered.

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Dated: April 9, 2014.

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