Stringer v. Marshall

Filing 68

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/11/15 ORDERING that the case shall remain stayed pending the outcome of state DNA testing as ordered by the Solano County Superior Court on June 19, 2015, with a limited exception allowing petitioner to seek the order regarding fingerprint evidence. Any such motion shall be filed within 30 days of the date of this order, and petitioner shall file a status report within seven days of the state court hearing on September 4, 2015.(Dillon, M)

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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 Ninth Circuit concluded that AEDPA’s

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limitations provisions are subject to an equitable exception for claims of actual innocence. Lee v.

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Lampert, 653 F.3d 929 (9th Cir. 2011) (en banc). The United States Supreme Court agreed in

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2013. McQuiggin v. Perkins, __ U.S. __, 133 S. Ct. 1924, 1928, 1933 (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 ordered supplemental briefing and the state court record to address the actual

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innocence issue. ECF No. 40. The court has received the record and the briefs, but stayed the

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case at petitioner’s request while petitioner asked for DNA testing through the state courts. ECF

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No. 57. The state court granted petitioner’s motion for DNA testing, and petitioner requests that

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the stay be extended while that testing takes place. ECF Nos. 63, 65, 67. As the outcome of the

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DNA testing is highly relevant to the issue before it, the court will grant the stay pending the

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outcome of the testing.
Petitioner also asks for a limited exception to the stay so that he may file a motion for a

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court order compelling state officials to run certain fingerprint evidence through all available law

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enforcement data bases. Respondent has filed no opposition to this request, and the court will

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grant the request.

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In sum, the case shall remain stayed pending the outcome of state DNA testing as ordered

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by the Solano County Superior Court on June 19, 2015, with a limited exception allowing

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petitioner to seek the order regarding fingerprint evidence. Any such motion shall be filed within

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30 days of the date of this order, and petitioner shall file a status report within seven days of the

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state court hearing on September 4, 2015.

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So ordered.

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Dated: August 11, 2015.

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