Embry v. Sinclair

Filing 19

ORDER by Judge Karen L Strombom granting 11 Motion to Stay; granting 18 Motion for Extension of Time to Answer. Petitioner shall advise the Court within thirty (30) days of receiving a final State court ruling.(MET) cc: petitioner

1
2
3
4
5
6

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

7
8
9

RANDALL MARQUISE EMBRY,
NO. C14-5360 BHS-KLS
Petitioner,

10
11
12

STEVE SINCLAIR,
Respondent.

13
14

ORDER GRANTING MOTIONS
TO STAY AND FOR EXTENSION

v.

Petitioner Randall Marquise Embry moves to stay his federal habeas petition pending

15

the outcome of a state court proceeding. Dkt. 11. Respondent Steve Sinclair is not opposed to

16

the stay and moves for an extension of time to respond to the federal habeas petition until 45

17

days after the state court has issued its decision. Dkts. 17 and 18. The Court finds that this

18

matter should be stayed pending resolution of Mr. Embry’s state court proceedings and the

19
motion for extension granted.
20
DISCUSSION

21
22

Mr. Embry’s federal habeas petition challenges his custody under a state court

23

judgment and sentence imposed for his conviction of attempted first degree murder, conspiracy

24

to commit first degree murder, and first degree unlawful possession of a firearm. Dkt. 9. He

25

raises four grounds of prejudicial admission of evidence regarding gang membership,

26

ORDER - 1

1
2
3

prejudicial joinder of co-defendants, insufficient evidence, and sentencing error regarding the
firearm enhancement. Id. Mr. Embry moves to stay the federal proceedings based on a
recently filed personal restraint petition in the Washington Court of Appeals, in which he raises

4
5
6
7

multiple grounds, including the four that are at issue in his federal habeas petition. Dkt. 17,
Exhibit 1 (Personal Restraint Petition, Washington Court of Appeals Case No. 46193-5-II).
The Court may stay a petition where the stay would be a proper exercise of discretion.

8

Rhines v. Weber, 544 U.S. 269, 276 (2005); see also Fetterly v. Paskett, 997 F.2d 1295 (9th

9

Cir. 1993); Calderon v. United States Dist. Court for Northern Dist. of California, 144 F.3d

10

618, 620 (9th Cir. 1998); Anthony v. Cambra, 236 F.3d 568 (9th Cir. 2000).

11
Mr. Embry contends that a stay is necessary so that he may litigate his recently filed
12
13

personal restraint petition in the Washington appellate courts. He states that he filed his federal

14

petition to avoid running afoul of the federal statute of limitations. Dkt. 11. Respondent does

15

not object to the requested stay but asks that the Court grant an extension of time to answer the

16

petition such that the answer becomes due 45 days after the stay of proceedings is lifted. Dkts.

17

17 and 18.

18

Accordingly, it is ORDERED:

19
(1)

Petitioner’s motion to stay (Dkt. 11) is GRANTED and this matter is STAYED

20
21
22
23
24
25

pending resolution of the state court proceedings. Petitioner shall advise the Court within
thirty (30) days of receiving a final State court ruling.
(2)

Respondent’s motion for extension (Dkt. 18) is GRANTED. Respondent shall

file his Answer within 45 days after the stay in this matter is lifted. The Answer will be treated
in accordance with Local Rule CR 7. Accordingly, upon receipt of the Answer the Clerk will

26

ORDER - 2

1
2
3

note the matter for consideration on the fourth Friday after the answer is filed, Petitioner may
file and serve a response not later than on the Monday immediately preceding the Friday
appointed for consideration of the matter, and Respondent may file and serve a reply brief not

4
5
6
7
8

later than the Friday designated for consideration of the matter.
(3)

The Clerk shall send copies of this Order to Petitioner and counsel for

Respondent.
DATED this 7th day of July, 2014.

9

A

10
11

Karen L. Strombom
United States Magistrate Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

ORDER - 3