Stringer v. Marshall

Filing 83

ORDER signed by Magistrate Judge Edmund F. Brennan on 1/10/2018 ORDERING Petitioner to file a status report informing the court of the status of the state DNA testing within 14 days of the date of this order. (Henshaw, R)

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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, 569 U.S. 383 (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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On remand, this court ordered supplemental briefing and the state court record to address

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

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stayed the case at petitioner’s request while petitioner asked for DNA testing through the state

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courts. ECF No. 60. Although petitioner has provided several status reports regarding the

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progress of the DNA testing, he has not updated the court since March 29, 2017. Accordingly, it

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is hereby ORDERED that, within 14 days of the date of this order, petitioner shall file a status

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report informing the court of the status of the state DNA testing.

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So ordered.

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Dated: January 10, 2018.

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