Opinion
No. 2:09-cv-2980-GEB-EFB P
08-11-2015
LONNIE DAVID STRINGER, Petitioner, v. JOHN MARSHALL, Respondent.
ORDER
Petitioner is a state prisoner with counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. On March 31, 2011, this court granted respondent's motion to dismiss the action as barred by the statute of limitations contained in the Anti-terrorism and Effective Death Penalty Act ("AEDPA"). ECF No. 30. Later that year, the Ninth Circuit concluded that AEDPA's limitations provisions are subject to an equitable exception for claims of actual innocence. Lee v. Lampert, 653 F.3d 929 (9th Cir. 2011) (en banc). The United States Supreme Court agreed in 2013. McQuiggin v. Perkins, ___ U.S. ___, 133 S. Ct. 1924, 1928, 1933 (2013).
On appeal, the Ninth Circuit affirmed this court's determinations that: (1) petitioner is not entitled to statutory tolling; (2) the federal statute of limitations began to run when petitioner's conviction became final; and (3) petitioner is not entitled to equitable tolling. ECF No. 38. However, because this court did not consider whether petitioner qualified for the equitable exception based on actual innocence, the Ninth Circuit remanded the case for consideration of that single issue, citing McQuiggin. Id.
The court ordered supplemental briefing and the state court record to address the actual innocence issue. ECF No. 40. The court has received the record and the briefs, but stayed the case at petitioner's request while petitioner asked for DNA testing through the state courts. ECF No. 57. The state court granted petitioner's motion for DNA testing, and petitioner requests that the stay be extended while that testing takes place. ECF Nos. 63, 65, 67. As the outcome of the DNA testing is highly relevant to the issue before it, the court will grant the stay pending the outcome of the testing.
Petitioner also asks for a limited exception to the stay so that he may file a motion for a court order compelling state officials to run certain fingerprint evidence through all available law enforcement data bases. Respondent has filed no opposition to this request, and the court will grant the request.
In sum, the case shall remain stayed pending the outcome of state DNA testing as ordered by the Solano County Superior Court on June 19, 2015, with a limited exception allowing petitioner to seek the order regarding fingerprint evidence. Any such motion shall be filed within 30 days of the date of this order, and petitioner shall file a status report within seven days of the state court hearing on September 4, 2015.
So ordered. Dated: August 11, 2015.
/s/_________
EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE