Opinion
No. 2:13-cv-00454 WBS AC P
06-15-2016
ANTHONY R. TURNER, Petitioner, v. WILLIAM MUNIZ, Warden, Respondent.
ORDER
Petitioner is a state prisoner proceeding through appointed counsel. Presently pending is petitioner's motion to stay this habeas corpus action filed pursuant to 28 U.S.C. § 2254, pending exhaustion in the state courts of petitioner's motion for resentencing based on a change in state law (California's Safe Neighborhoods and Schools Act, enacted in November 2014). Petitioner filed his state court motion for resentencing in March 2015. It was denied by the trial court, then granted in part by the California Court of Appeal on January 15, 2016. On March 30, 2016, the California Supreme Court granted review (Case No. S232272), and stated that it will hold the case pending the outcome of lead case People v. Martinez (Case No. S231826). See ECF No. 69 and exhibits thereto.
Petitioner's counsel states that she has conferred with respondent's counsel, who does not oppose the instant motion to stay this action. See ECF No. 69 at 2. However, this representation is not made under penalty of perjury, and respondent has filed nothing memorializing his non-opposition. Respondent opposed petitioner's previous motion for a stay. See ECF No. 61.
Moreover, this court has previously found that a stay is not appropriate under the circumstances presented here, where petitioner must file a new federal petition for writ of habeas corpus to challenge any new state resentencing judgment. See ECF No. 63 (Jan. 5, 2016).
For these reasons, respondent will be directed to file a response to petitioner's pending motion.
Petitioner has scheduled this matter for hearing before this court on August 24, 2016. The undersigned has determined that a hearing is unnecessary in this matter and issues the following briefing schedule.
For good cause shown, IT IS HEREBY ORDERED that:
1. Respondent shall, within twenty-one days after the filing date of this order, file and serve a response to petitioner's motion to stay.
2. Petitioner may, within seven days after service of respondent's response, file and serve a reply.
3. The hearing scheduled for August 24, 2016 is vacated; the court will decide the merits of petitioner's motion on the papers unless the undersigned later determines that a hearing would be helpful.
SO ORDERED. DATED: June 15, 2016
/s/_________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE