Dalby v. Diaz

Filing 22

ORDER signed by Magistrate Judge Kendall J. Newman on 06/10/14 ordering respondent shall within 14 days after the filing date of this order file and serve one of the following: a) A supplemental brief in support of the pending motion to dismiss or s tay, or b)an amended motion to dismiss or stay. Petitioner shall within 21 days after service of respondents new briefing, file and serve one of the following: a) a supplemental opposition to the pending motion to dismiss or stay, or b) an oppositio n to the amended motion to dismiss or stay. If respondent's new briefing is an amended motion to dismiss or stay, respondent may within 7 days after the filing date of petitioner's response, file and serve a reply. Petitioner's motion 18 in opposition to respondent's request for extension of time is denied as moot. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM DALBY,

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Petitioner,

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No. 2:13-cv-01169 TLN KJN P

v.

ORDER

RON RACKLEY, Warden,1

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Respondent.

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Petitioner is a state prisoner, currently incarcerated at the California Department of

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Corrections and Rehabilitation’s California Health Care Facility, in Stockton. Petitioner proceeds

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pro se and in forma pauperis in this habeas corpus action filed pursuant to 28 U.S.C. § 2254.

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Petitioner challenges his conviction on sixteen counts of aggravated sexual assault of a child

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under the age of fourteen, one count of oral copulation, and one count of failure to appear on a

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felony charge while released on bail. Petitioner also challenges his sentence to a determinate

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prison term of six years and eight months, and an indeterminate term of 240 years to life.

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Warden Rackley is substituted as respondent herein. 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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Currently pending is respondent’s motion to dismiss or stay this action. For the reasons
that follow, further briefing is ordered.

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Petitioner filed his federal habeas petition on June 5, 2013. On December 16, 2013,

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respondent filed the pending motion to dismiss or stay, and informed the court that a re-

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sentencing hearing was scheduled in this case in the Yolo County Superior Court on January 31,

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2014. That hearing, required by a remand order issued by the California Court of Appeal on

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November 2, 2004, had been overlooked in the Yolo County Superior Court until respondent’s

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counsel made an inquiry in this action.2 In his opposition to the motion, filed on January 16,

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2014, petitioner acknowledges that this matter was “forgotten” in the state courts, and argues that

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the delay was unconstitutional and warrants “being set free.” (ECF No. 19 at 2.)

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There has been no briefing in this action since the scheduled January 31, 2014 hearing in

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the Yolo County Superior Court. Therefore, the parties will be required to file and serve further

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briefing in light of the subsequent superior court proceedings (assuming they took place). In

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addition, petitioner’s motion (ECF No. 18), opposing respondent’s request for an extension of

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time within which to file a response to the habeas petition and/or for default judgment,3 will be

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In her declaration filed in support of respondent’s motion to dismiss or stay, Deputy Attorney
General Michelle Rubio states in pertinent part (ECF No. 18-2 at 2 (numbered paras. omitted)):
On or about November 14, 2013, I contacted the Yolo County
Superior Court to inquire about the remand by the Court of Appeal
in People v. Dalby, No. C031880, regarding sentencing on counts 1
to 3, 9 to 20, and 22, and to acquire an amended abstract of
judgment.

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The superior court clerk was alarmed when she researched the case
and learned that the resentencing had never occurred and that the
case inadvertently slipped through the cracks. The clerk informed
me that the superior court would immediately work towards
resolving the issue.

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On December 12, 2012 (sic), I again inquired with the superior
court regarding the resentencing. I was informed that a hearing was
set in the Yolo County Superior Court in People v. Dalby, Case No.
CR-F-99-3920, for Friday, January 31, 2014, at 8:30 a.m. [Notice
of Hearing attached.]

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The court finds that petitioner’s alternative ground, a motion for default judgment based on
respondent’s anticipated failure to file a timely response, is frivolous.
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denied as moot.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Respondent shall, within fourteen (14) days after the filing date of this order, file and

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serve one of the following: (a) a Supplemental Brief in Support of the pending Motion to Dismiss

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or Stay; OR (b) an Amended Motion to Dismiss or Stay.

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2. Petitioner shall, within twenty-one (21) days after service of respondent’s new briefing,

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file and serve one of the following: (a) a Supplemental Opposition to the pending Motion to

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Dismiss or Stay; OR (b) an Opposition to the Amended Motion to Dismiss or Stay.

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3. If respondent’s new briefing is an Amended Motion to Dismiss or Stay, respondent

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may, within seven (7) days after the filing date of petitioner’s response, file and serve a reply.

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4. Petitioner’s motion (ECF No. 18),in opposition to respondent’s request for extension of

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time, is denied as moot.

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SO ORDERED.

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Dated: June 10, 2014

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