Davis v. Curry

Filing 5

ORDER by Judge Marilyn Hall Patel denying 3 Motion to Stay; Answer to be filed by 9/4/2009; Traverse to be filed by 10/9/2009 (Attachments: # 1 CertServ) (awb, COURT STAFF) (Filed on 7/16/2009)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

CHARLES E. DAVIS, JR., Petitioner, v. B. CURRY, warden, Respondent. /

No. C 08-1127 MHP (pr) ORDER

In this habeas action, petitioner has challenged a decision by the Board of Parole Hearings that found him not suitable for parole. The matter is now before the court for consideration of respondent's motion for a stay pending a decision in a particular paroledenial case pending in the Ninth Circuit that may resolve some or all of the issues in this case and petitioner's motion for habeas relief due to respondent's "failure to prosecute." In Hayward v. Marshall, 9th Cir. Case No. 06-55392, the panel's published decision, 512 F.3d 536 (9th Cir. 2008), was vacated when rehearing en banc was granted on May 16, 2008. The en banc oral argument took place on June 24, 2008, and the parties have finished their original briefing, as well as two supplemental rounds of briefing. Although it is likely that Hayward will provide guidance for analyzing parole denial cases, there is no set date for a decision in Hayward. Due to the absence of a set date for a decision in Hayward, the court will not stay this action pending a decision in Hayward. See Yong v. INS, 208 F.3d 1116, 1120-22 (9th Cir. 2000) (it is an abuse of discretion for a district court to stay a habeas petition indefinitely pending resolution of a different case involving parallel issues on the basis of judicial economy). The motion for a stay is DENIED. (Docket # 3.)

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In light of the denial of the motion to stay, the court now sets the following briefing schedule: Respondent must file and serve his answer no later than September 4, 2009. Petitioner must file and serve his traverse no later than October 9, 2009. IT IS SO ORDERED. DATED: July 13, 2009 Marilyn Hall Patel United States District Judge

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