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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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 12 LONNIE DAVID STRINGER, 13 Petitioner, 14 15 No. 2:09-cv-2980-GEB-EFB P v. JOHN MARSHALL, 16 ORDER Respondent. 17 Petitioner is a state prisoner with counsel seeking a writ of habeas corpus. See 28 U.S.C. 18 19 § 2254. On March 31, 2011, this court granted respondent’s motion to dismiss the action as 20 barred by the statute of limitations contained in the Anti-terrorism and Effective Death Penalty 21 Act (“AEDPA”). ECF No. 30. Later that year, the U.S. Court of Appeals for the Ninth Circuit 22 concluded that AEDPA’s limitations provisions are subject to an equitable exception for claims of 23 actual innocence. Lee v. Lampert, 653 F.3d 929 (9th Cir. 2011) (en banc). The United States 24 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 25 26 entitled to statutory tolling; (2) the federal statute of limitations began to run when petitioner’s 27 conviction became final; and (3) petitioner is not entitled to equitable tolling. ECF No. 38. 28 ///// 1 1 However, because this court did not consider whether petitioner qualified for the equitable 2 exception based on actual innocence, the Ninth Circuit remanded the case for consideration of 3 that single issue, citing McQuiggin. Id. 4 On remand, this court ordered supplemental briefing and the state court record to address 5 the actual innocence issue. ECF No. 40. The court has received the record and the briefs, but 6 stayed the case at petitioner’s request while petitioner asked for DNA testing through the state 7 courts. ECF No. 60. Although petitioner has provided several status reports regarding the 8 progress of the DNA testing, he has not updated the court since March 29, 2017. Accordingly, it 9 is hereby ORDERED that, within 14 days of the date of this order, petitioner shall file a status 10 report informing the court of the status of the state DNA testing. 11 So ordered. 12 Dated: January 10, 2018. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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