Dalby v. Diaz

Filing 24

ORDER signed by Magistrate Judge Kendall J. Newman on 7/28/2014 ORDERING 18 that Respondent's motion to dismiss is DENIED without prejudice; Petitioner shall, within 60 days after the filing date of this order, file and serve a statement infor ming the court of the status of his re-sentencing in the Yolo County Superior Court; if re-sentencing has occurred, petitioner shall also inform the court whether he intends to rely on his original petition filed 6/5/2013, or request leave to file an amended petition; if the latter, petitioner shall also state whether he will request that this action be staying pending exhaustion of state court remedies on new claim(s); thereafter, the court will schedule appropriate deadlines. (Reader, L)

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

Petitioner,
v.

ORDER

RON RACKLEY, Warden,
Respondent.

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Petitioner is a state prisoner, proceeding pro se and in forma pauperis in this habeas

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corpus action filed pursuant to 28 U.S.C. § 2254. On June 11, 2014, this court directed the parties

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to further brief the pending motion to dismiss or stay this action. (See ECF No. 22.) The court

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noted in pertinent part (id. at 2-3) (fn. omitted):

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Petitioner challenges his conviction . . . [and] sentence to a
determinate prison term of six years and eight months, and an
indeterminate term of 240 years to life.
Currently pending is respondent’s motion to dismiss or stay this
action. For the reasons that follow, further briefing is ordered.
Petitioner filed his federal habeas petition on June 5, 2013. On
December 16, 2013, respondent filed the pending motion to dismiss
or stay, and informed the court that a re-sentencing hearing was
scheduled in this case in the Yolo County Superior Court on
January 31, 2014. That hearing, required by a remand order issued
by the California Court of Appeal on November 2, 2004, had been
overlooked in the Yolo County Superior Court until respondent’s
counsel made an inquiry in this action. In his opposition to the
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motion, filed on January 16, 2014, petitioner acknowledges that this
matter was “forgotten” in the state courts, and argues that 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 the Yolo County Superior Court.
Therefore, the parties will be required to file and serve further
briefing in light of the subsequent superior court proceedings
(assuming they took place). . . .

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Respondent now informs the court that the superior court hearing scheduled for January

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31, 2014, was rescheduled three times, most recently to July 25, 2014. (See ECF No. 23 and 23-1

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(Rubio Decl.).) Respondent requests that the court “abstain from evaluating Petitioner’s sentence

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at the present time,” citing Younger v. Harris, 401 U.S. 37 (1971) (federal courts may not

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interfere in pending state criminal proceeding absent extraordinary circumstances). (ECF No. 23

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at 2.) Respondent requests that “this matter be dismissed without prejudice or, in the alternative,

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stayed until the outcome of sentencing is known.” (Id.) Although the superior court hearing may

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have recently taken place, this court will dismiss respondent’s pending motion to dismiss without

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prejudice, as both parties will require an opportunity to consider the superior court’s decision and

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its implications in this action.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Respondent’s motion to dismiss (ECF No. 18) is denied without prejudice.

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2. Petitioner shall, within 60 days after the filing date of this order, file and serve a

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statement informing the court of the status of his re-sentencing in the Yolo County Superior

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Court. If re-sentencing has occurred, petitioner shall also inform the court whether he intends to

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rely on his original petition filed June 5, 2013, or request leave to file an amended petition; if the

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latter, petitioner shall also state whether he will request that this action be staying pending

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exhaustion of state court remedies on new claim(s).

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3. Thereafter, the court will schedule appropriate deadlines.
Dated: July 28, 2014

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dalb1169.mtd.dsms.wop.

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