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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ANTHONY W. PORTER,

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v.

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WILLIAM MUNIZ,

United States District Court
Northern District of California

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Case No. 14-cv-05034-PJH

Petitioner,

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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

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Following the retirement of Judge Thelton E. Henderson, this matter was

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reassigned to the undersigned judge. Before the court is the request of respondent

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William Muniz for a stay of the July 17, 2017, order granting in part the petition for writ of

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habeas corpus, pending resolution of the appeal and cross-appeal. Doc. no. 41.

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Petitioner requested an extension of time to file a response, doc. no. 45, which is granted

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nunc pro tunc, and filed a notice of non-opposition to respondent’s request for a stay.

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Doc. no. 46. For the reasons set forth in respondent’s brief and as discussed below, the

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court GRANTS respondent’s unopposed request for a stay.

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The July 17, 2017, order granted in part the habeas petition on the grounds that

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petitioner was denied effective assistance of counsel at the resentencing agreement

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stage and that he did not enter the resentencing agreement knowingly and voluntarily.

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The court vacated the September 9, 2010, resentencing agreement and required

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respondent to retry the gang enhancements and premeditation/deliberation allegations

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within 120 days of the order, but did not order petitioner’s release. Doc. no. 37. The

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court denied the remaining claims for habeas relief on the grounds of ineffective

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assistance of trial counsel and double jeopardy, and held that “Porter’s twenty-five year

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sentence imposed on May 6, 2005 remains undisturbed.” Id. at 29. Respondent seeks a

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stay of the order which requires retrial of the gang enhancements and deliberation

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allegations, pending petitioner’s appeal and respondent’s cross-appeal of the July 17,

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2017, order.

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The court considers the following factors regulating the issuance of a stay of an

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order granting habeas relief pending appeal: (1) whether the stay applicant has made a

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strong showing that he is likely to succeed on the merits; (2) whether the applicant will be

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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.

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United States District Court
Northern District of California

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Hilton v. Braunskill, 481 U.S. 770, 776 (1987) (citations omitted).

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Respondent has demonstrated that a stay of the July 17, 2017, order, requiring

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retrial limited to the gang enhancements and deliberation allegations within 120 days of

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the order, is warranted under the Hilton factors. With respect to the first Hilton factor,

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respondent has demonstrated that reasonable jurists may differ with the court’s

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assessment of petitioner’s claim of ineffective assistance at the resentencing agreement

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stage, to support at least a substantial probability that respondent may succeed on

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appeal. Hilton, 481 U.S. at 778 (“Where the State establishes that it has a strong

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likelihood of success on appeal, or where, failing that, it can nonetheless demonstrate a

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substantial case on the merits, continued custody is permissible if the second and fourth

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factors in the traditional stay analysis militate against release.”). As to the second and

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fourth Hilton factors, respondent has shown both irreparable injury absent a stay and

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public interest in favor of a stay because the prosecution must expend substantial time

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and resources to retry the gang enhancement and deliberation allegations and the result

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of the retrial could be rendered moot if either party prevails on his appeal or cross-appeal.

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As to the third Hilton factor, petitioner would not be substantially injured by a stay

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because he will remain in state custody under the 25-year sentence which remains intact

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pending the appeal and cross-appeal.
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Having considered the relevant factors, the court determines that a stay of the July

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17, 2017, order is warranted. Respondent’s unopposed request for a stay is therefore

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GRANTED.

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IT IS SO ORDERED.
Dated: August 23, 2017
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PHYLLIS J. HAMILTON
United States District Judge

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United States District Court
Northern District of California

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