Dalby v. Diaz

Filing 26

ORDER signed by Magistrate Judge Kendall J. Newman on 8/21/14 ORDERING that this action is stayed until further order of this court, with the exception of the following reporting requirements imposed on both parties. Within 14 days after petitio ners re-sentencing in the Yolo County Superior Court, petitioner and respondent shall file and serve separate statements informing this court of the date and outcome of the state court proceedings; in addition, petitioner shall inform the court how he wishes to proceed with the instant federal action. Pending a decision by the Yolo County Superior Court, the parties shall file and serve separate statements, every sixty (60) days commencing with the filing date of this order, that inform this court of the ongoing status of the state court proceedings. (Dillon, 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,

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Respondent.

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On July 28, 2014, this court denied without prejudice respondent’s motion to dismiss

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petitioner’s habeas petition, due to the pendency of petitioner’s re-sentencing hearing in the Yolo

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County Superior Court. (ECF No. 24.) Petitioner was directed to file and serve a statement

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informing the court of the status of the Yolo County Superior Court hearing, and how petitioner

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wishes to proceed in the instant action. Petitioner informed the court that, as of August 12, 2014,

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the state court hearing had not been convened nor petitioner informed of a future date. (ECF No.

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25.)

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Due to the pendency of the state court proceedings, this court may not act on petitioner’s

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instant federal habeas petition, because petitioners’ sentencing claim herein may be altered by the

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state court’s decision. It is appropriate for this court to abstain in the instant action until the state

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court rules. See Younger v. Harris, 401 U.S. 37 (1971); Colorado River Water Conservation Dist.

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v. United States, 424 U.S. 800, 813-14 (1976). Moreover, should petitioner wish to continue to
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assert a federal sentencing claim, he must exhaust that claim in the state courts before proceeding

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in this court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083,

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1086 (9th Cir. 1985). These circumstances warrant a stay in this action until the Yolo County

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Superior Court acts, and petitioner then decides how he wishes to proceed.

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Accordingly, IT IS HEREBY ORDERED that:

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1. This action is stayed until further order of this court, with the exception of the

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following reporting requirements imposed on both parties.
2. Within fourteen (14) days after petitioner’s re-sentencing in the Yolo County Superior

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Court, petitioner and respondent shall file and serve separate statements informing this court of

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the date and outcome of the state court proceedings; in addition, petitioner shall inform the court

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how he wishes to proceed with the instant federal action.

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3. Pending a decision by the Yolo County Superior Court, the parties shall file and serve

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separate statements, every sixty (60) days commencing with the filing date of this order, that

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inform this court of the ongoing status of the state court proceedings.

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Dated: August 21, 2014

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