Bunn v. Lopez et al

Filing 45

ORDER signed by Magistrate Judge Carolyn K. Delaney on 3/17/16 ORDERING that within 14 days from the date of this order, the parties may file briefs stating their objections, if any, to a stay of this action for the purpose of allowing petitioner to exhaust his Eighth Amendment claim in state court. If the parties agree that a stay is advisable, they may file a stipulation to that effect. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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REGINALD THOMAS BUNN, JR.,

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No. 2:11-cv-1373 MCE CKD P (TEMP)

Petitioner,

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ORDER

v.
RAUL LOPEZ,

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Respondent.

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Petitioner is a state prisoner proceeding through counsel with a petition for a writ of

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habeas corpus under 28 U.S.C. § 2254. By order dated January 28, 2016, this court ordered the

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parties to file supplemental briefing addressing petitioner’s claim that his sentence of life without

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parole plus 25 years-to-life constitutes cruel and unusual punishment, in light of the recent

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decision of the United States Supreme Court in Montgomery v. Louisiana, No. 14-280, 2016 WL

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280758 (USSC Jan. 25, 2016) and the decision of the California Supreme Court in People v.

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Gutierrez, 58 Cal.4th 1354 (2014). Petitioner filed his supplemental brief on February 9, 2016,

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and respondent filed his brief on March 9, 2016. In his brief, respondent argues that petitioner’s

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Eighth Amendment Claim has been rendered unexhausted in light of Montgomery and Miller v.

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Alabama, ___ U.S. ___, 132 S. Ct. 2455 (2012). After a review of the record and the relevant

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law, the court intends to recommend that this action be administratively stayed in order to allow

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petitioner to exhaust his Eighth Amendment claim in state court. See Rhines v. Weber, 544 U.S.
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269 (2005); King v. Ryan, 564 F.3d 1133 (9th Cir. 2009). However, before issuing findings and

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recommendations to that effect, the court will grant the parties the opportunity to express any

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objections they may have to imposing a stay of this action.

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Accordingly, IT IS ORDERED that within fourteen days from the date of this order, the

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parties may file briefs stating their objections, if any, to a stay of this action for the purpose of

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allowing petitioner to exhaust his Eighth Amendment claim in state court. If the parties agree that

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a stay is advisable, they may file a stipulation to that effect.

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Dated: March 17, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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Mou8(2):bunn1373.stay(du)

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