Alve v. Scribner

Filing 18

ORDER Declining to Adopt 16 Magistrate Judge's Report and Recommendation; Granting Respondent's Notice of Withdrawal of Motion and Motion to Stay. The Court STAYS Petitioner's pending 28 U.S.C. 2254 petition until the decision in Hay ward v. Marshall is made final. Respondent shall re-initiate these habeas corpus proceedings within sixty (60) days after the Hayward decision becomes final. Signed by Judge Thomas J. Whelan on 9/10/08. (All non-registered users served via U.S. Mail Service).(cap) (kaj).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. BACKGROUND On January 25, 2008 Petitioner Alejandro Alve ("Petitioner") commenced this 28 U.S.C. § 2254 habeas corpus proceeding. (Doc. No. 1.) On April 10, 2008 Respondent L.E. Scribner ("Respondent") moved to dismiss Petitioner's petition, arguing that it was time-barred by 28 U.S.C. § 2254's one-year statute of limitations. (Doc. No. 6.) On June 26, 2008, however, Respondent filed a notice of withdrawal of the motion to dismiss, admitting that Petitioner was entitled to more statutory tolling than previously believed and concluding that Petitioner's petition was, in fact, timely. (Linnea Piazza Decl. ¶ 9.) Respondent also requested that the Court stay the proceedings in light of the pending Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008), reh'g en banc granted, No. 06-55392 (9th Cir. filed May 16, 2008) decision, which may resolve certain jurisdictional and standard of review questions underlying the petition.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ALEJANDRO ALVE, vs. L.E. SCRIBNER, Respondent. Petitioner, CASE NO. 08-CV-0162 W (LSP) ORDER (1) DECLINING TO ADOPT MAGISTRATE JUDGE'S REPORT & RECOMMENDATION; (2) GRANTING RESPONDENT'S NOTICE OF WITHDRAWAL OF MOTION AND MOTION TO STAY (Doc. Nos. 14, 16)

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Nevertheless, on June 30, 2008 Magistrate Judge Leo S. Papas filed a Report and

2 Recommendation ("Report") recommending that the Court dismiss Petitioner's petition 3 as untimely. (Doc. No. 16.) The Report acknowledged but disregarded Respondent's 4 motion to withdraw. On July 15, 2008 Petitioner objected to the Report, arguing that 5 Respondent had withdrawn its motion and that he timely filed his petition under 6 California and Ninth Circuit law. Because both Petitioner and Respondent agree that 7 the petition was timely filed, the Court DECLINES to adopt the Magistrate Judge's 8 Report and STAYS the petition pending the Hayward's outcome. 9 10 II. 11 LEGAL STANDARD & ANALYSIS Respondent argues that staying this case is appropriate because judicial order and

12 economy would be advanced. (Resp.'s Not. of Withdrawal 2­4.) Moreover, Respondent 13 argues, a stay would not unfairly delay Petitioner in pursuing his claims. (Id. 4.) 14 Petitioner's only docketed response takes the form of his objections to the Report, where 15 he simply argues that he timely filed his petition and that the Report should be 16 "vacated." (Pet.'s Obj. 5.) However, in his objections Petitioner acknowledges 17 Respondent's notice to withdraw and thus must be aware of Respondent's motion to 18 stay. (Id. 1­3.) Petitioner offers no objections or opposition to Respondent's motion to 19 stay. 20 A district court has discretionary power to stay proceedings in its own court under 21 Landis v. North American Co., 299 U.S. 248, 254 (1936). In determining whether to 22 grant a stay, a court should consider the possible damage that may result, the hardship 23 or inequity that a party may suffer, and the orderly course of justice, in terms of 24 simplifying or complicating the issues, proof, and questions of law that could result from 25 issuing the stay. Lockyer v. Mirant Corp., 398 F.3d 1098, 1109, 1111 (9th Cir. 2005). 26 A court can take into account the existence of similar cases pending in the same 27 district, and the probability that more are likely to be filed. Id. Staying cases that are 28 on the forefront of an issue provides a necessary delay, allowing for resolution of the
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1 issues and resulting in uniform treatment of like suits. Id. 2 Here, the pending Hayward decision deals with two issues central to resolving this 3 petition: (1) whether California has created a federally protected liberty interest in 4 parole for life inmates, and (2) if a liberty interest is created, what process is due under 5 clearly established Supreme Court authority. Staying this case pending Hayward's 6 resolution could ultimately narrow the issues, clarify the Court's standard of review, and 7 reduce the need for supplemental or inconsistent briefings. Furthermore, the Ninth 8 Circuit and other courts have stayed many cases pending Hayward's eventual resolution. 9 See, e.g., Tolliver v. Carey, no. 07-15347 (9th Cir.); Boatman v. Brown, no. 05-16199 10 (9th Cir.); Alvarez v. Davison, no. 06-56678 (9th Cir.); Owen v. Vaughn, 07-56747 11 (9th Cir.). Finally, Petitioner will not be unfairly delayed in pursuing his claims because 12 any resulting Hayward decision would in any event require additional briefing or prompt 13 the losing party to file an appeal. As mentioned above, Petitioner has not submitted any 14 objections to Respondent's request to stay the proceedings. 15 Accordingly, the Court DECLINES TO ADOPT the Magistrate Judge's Report 16 and STAYS Petitioner's pending 28 U.S.C. § 2254 petition until the decision in 17 Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008), reh'g en banc granted, No. 0618 55392 (9th Cir. filed May 16, 2008) is made final. Respondent shall re-initiate these 19 habeas corpus proceedings within sixty (60) days after the Hayward decision becomes 20 final. 21 22 23 24 DATED: September 10, 2008 25 26 27 28
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IT IS SO ORDERED.

Hon. Thomas J. Whelan United States District Judge