King v. The People of the State of California

Filing 18

ORDER STAYING CASE. Signed by Judge William Alsup on 9/30/08. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 9/30/2008)

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1 2 3 4 5 6 7 8 9 10 BERNARD A. KING, Petitioner, v. GEORGE M. GALAZA, Warden, Respondent. / No. C 05-3666 WHA (PR) ORDER STAYING CASE IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This is a habeas case filed pro se by a state prisoner. The only remaining issue in the case is whether the sentencing court violated Cunningham v. California, 127 S. Ct. 856, 871 (2007), in imposing an upper term and consecutive sentences. In the answer respondent argues that the Cunningham claim is not exhausted, that it is barred by Teague v. Lane, 489 U.S. 288 (1989), and that facts used to impose the upper term fell within the "prior conviction" exception to the Cunningham rule that sentencing facts must be found by a jury rather than the court. Respondent recognizes that all these contentions were rejected in Butler v. Curry, 528 F.3d 624 (9th Cir. 2008), but has raised them to preserve them. The mandate has not yet issued in Butler, because the Ninth Circuit has stayed issuance of the mandate until at least October 27, 2008, to allow time for the state to decide whether to petition for certiorari. Butler v. Curry, No. 07-56204 (Order July 28, 2008). This case therefore will be stayed pending issuance of the mandate in Butler, which will simplify ruling on /// 1 2 3 4 5 6 7 8 9 10 /// respondent's contentions.1 Also, the clerk will be instructed to administratively close the case, a purely statistical matter that has no legal effect. CONCLUSION This case is STAYED until November 3, 2008. The clerk shall administratively close the case. IT IS SO ORDERED. Dated: September 30 , 2008. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This stay does not fall afoul of Yong v. INS, 208 F.3d 1116, 1120-22 (9th Cir. 2000), because the stay will not be indefinite. 1 2 1 2 3 4 5 6 7 8 9 10 G:\PRO-SE\W HA\HC.05\KING666.STAY.wpd United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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