Turner v. Richardson et al

Filing 70

ORDER signed by Magistrate Judge Allison Claire on 06/15/16 ordering respondent shall, within twenty-one days after the filing date of this order, file and serve a response to petitioners motion to stay. Petitioner may, within seven days after servi ce of respondents response, file and serve a reply. The hearing scheduled for August 24, 2016 is vacated; the court will decide the merits of petitioners motion on the papers unless the undersigned later determines that a hearing would be helpful.(Plummer, M) Modified on 6/16/2016 (Plummer, M).

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY R. TURNER,

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No. 2:13-cv-00454 WBS AC P

Petitioner,

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v.

ORDER

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WILLIAM MUNIZ, Warden,1

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Respondent.

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Petitioner is a state prisoner proceeding through appointed counsel. Presently pending is

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petitioner’s motion to stay this habeas corpus action filed pursuant to 28 U.S.C. § 2254, pending

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exhaustion in the state courts of petitioner’s motion for resentencing based on a change in state

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law (California’s Safe Neighborhoods and Schools Act, enacted in November 2014). Petitioner

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filed his state court motion for resentencing in March 2015. It was denied by the trial court, then

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granted in part by the California Court of Appeal on January 15, 2016. On March 30, 2016, the

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California Supreme Court granted review (Case No. S232272), and stated that it will hold the

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case pending the outcome of lead case People v. Martinez (Case No. S231826). See ECF No. 69

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This court previously substituted as respondent herein Mr. William Muniz, Warden of Salinas
Valley State Prison, plaintiff’s place of incarceration. See ECF No. 66 at 1 n.1. As the court
previously noted, a federal petition for writ of habeas corpus must name as respondent the state
officer having custody of petitioner. See 28 U.S.C. § 2254; Rule 2(a), Rules Governing Section
2254 Cases in the U.S. District Courts; Smith v. Idaho, 392 F.3d 350, 354-55 (9th Cir. 2004);
Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).
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and exhibits thereto.

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Petitioner’s counsel states that she has conferred with respondent’s counsel, who does not

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oppose the instant motion to stay this action. See ECF No. 69 at 2. However, this representation

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is not made under penalty of perjury, and respondent has filed nothing memorializing his non-

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opposition. Respondent opposed petitioner’s previous motion for a stay. See ECF No. 61.

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Moreover, this court has previously found that a stay is not appropriate under the

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circumstances presented here, where petitioner must file a new federal petition for writ of habeas

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corpus to challenge any new state resentencing judgment. See ECF No. 63 (Jan. 5, 2016).

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For these reasons, respondent will be directed to file a response to petitioner’s pending
motion.
Petitioner has scheduled this matter for hearing before this court on August 24, 2016. The

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undersigned has determined that a hearing is unnecessary in this matter and issues the following

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briefing schedule.

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For good cause shown, IT IS HEREBY ORDERED that:

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1. Respondent shall, within twenty-one days after the filing date of this order, file and

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serve a response to petitioner’s motion to stay.
2. Petitioner may, within seven days after service of respondent’s response, file and serve
a reply.

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3. The hearing scheduled for August 24, 2016 is vacated; the court will decide the merits

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of petitioner’s motion on the papers unless the undersigned later determines that a hearing would

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be helpful.

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SO ORDERED.

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DATED: June 15, 2016

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