Porter v. Muniz

Filing 47

ORDER Granting Unopposed Request to Stay Order Granting in Part Writ of Habeas Corpus Pending Resolution of Appeal and Cross-Appeal filed by William Muniz. Signed by Judge Phyllis J. Hamilton on 8/23/2017. (pjhlc3, COURT STAFF) (Filed on 8/24/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANTHONY W. PORTER, 9 v. 10 WILLIAM MUNIZ, United States District Court Northern District of California 11 12 Case No. 14-cv-05034-PJH Petitioner, 8 Respondent. ORDER GRANTING UNOPPOSED REQUEST TO STAY ORDER GRANTING IN PART WRIT OF HABEAS CORPUS PENDING RESOLUTION OF APPEAL AND CROSS-APPEAL Re: Dkt. No. 41 13 14 Following the retirement of Judge Thelton E. Henderson, this matter was 15 reassigned to the undersigned judge. Before the court is the request of respondent 16 William Muniz for a stay of the July 17, 2017, order granting in part the petition for writ of 17 habeas corpus, pending resolution of the appeal and cross-appeal. Doc. no. 41. 18 Petitioner requested an extension of time to file a response, doc. no. 45, which is granted 19 nunc pro tunc, and filed a notice of non-opposition to respondent’s request for a stay. 20 Doc. no. 46. For the reasons set forth in respondent’s brief and as discussed below, the 21 court GRANTS respondent’s unopposed request for a stay. 22 The July 17, 2017, order granted in part the habeas petition on the grounds that 23 petitioner was denied effective assistance of counsel at the resentencing agreement 24 stage and that he did not enter the resentencing agreement knowingly and voluntarily. 25 The court vacated the September 9, 2010, resentencing agreement and required 26 respondent to retry the gang enhancements and premeditation/deliberation allegations 27 within 120 days of the order, but did not order petitioner’s release. Doc. no. 37. The 28 court denied the remaining claims for habeas relief on the grounds of ineffective 1 assistance of trial counsel and double jeopardy, and held that “Porter’s twenty-five year 2 sentence imposed on May 6, 2005 remains undisturbed.” Id. at 29. Respondent seeks a 3 stay of the order which requires retrial of the gang enhancements and deliberation 4 allegations, pending petitioner’s appeal and respondent’s cross-appeal of the July 17, 5 2017, order. 6 The court considers the following factors regulating the issuance of a stay of an 7 order granting habeas relief pending appeal: (1) whether the stay applicant has made a 8 strong showing that he is likely to succeed on the merits; (2) whether the applicant will be 9 irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. 11 United States District Court Northern District of California 10 Hilton v. Braunskill, 481 U.S. 770, 776 (1987) (citations omitted). 12 Respondent has demonstrated that a stay of the July 17, 2017, order, requiring 13 retrial limited to the gang enhancements and deliberation allegations within 120 days of 14 the order, is warranted under the Hilton factors. With respect to the first Hilton factor, 15 respondent has demonstrated that reasonable jurists may differ with the court’s 16 assessment of petitioner’s claim of ineffective assistance at the resentencing agreement 17 stage, to support at least a substantial probability that respondent may succeed on 18 appeal. Hilton, 481 U.S. at 778 (“Where the State establishes that it has a strong 19 likelihood of success on appeal, or where, failing that, it can nonetheless demonstrate a 20 substantial case on the merits, continued custody is permissible if the second and fourth 21 factors in the traditional stay analysis militate against release.”). As to the second and 22 fourth Hilton factors, respondent has shown both irreparable injury absent a stay and 23 public interest in favor of a stay because the prosecution must expend substantial time 24 and resources to retry the gang enhancement and deliberation allegations and the result 25 of the retrial could be rendered moot if either party prevails on his appeal or cross-appeal. 26 As to the third Hilton factor, petitioner would not be substantially injured by a stay 27 because he will remain in state custody under the 25-year sentence which remains intact 28 pending the appeal and cross-appeal. 2 1 Having considered the relevant factors, the court determines that a stay of the July 2 17, 2017, order is warranted. Respondent’s unopposed request for a stay is therefore 3 GRANTED. 4 5 6 7 IT IS SO ORDERED. Dated: August 23, 2017 __________________________________ PHYLLIS J. HAMILTON United States District Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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