Opinion
NO: CV-09-111-RMP.
September 21, 2010
ORDER GRANTING PETITIONER'S MOTION TO LIFT STAY, CANCEL HEARING AND SET A BRIEFING SCHEDULE
Before the Court is Petitioner's Motion For Order to Lift Stay, Cancel Hearing, and Proceed to Consideration of Amended Habeas Petition (Ct. Rec. 20). Respondent has filed a response agreeing with the motion (Ct. Rec. 21). Petitioner is Charles Michael Noble, a prisoner proceeding pro se. The Attorney General of Washington represents the Respondent.
BACKGROUND
On July 10, 2002, Petitioner entered a guilty plea to five counts of Indecent Liberties and received a sentence of 87 months on each count to run consecutively (Ct. Rec. 12-2 at 23). In August of 2002, the Department of Corrections wrote the parties and the court, asking that the sentence be amended to include a period of community custody as required by state law (Ct. Rec. 18 at 5). No action was taken. The Department of Corrections wrote again in February 2009, again asking that the sentence be amended.
In July of 2009, Petitioner filed an Amended Petition (Ct. Rec. 7). The Court ordered service on Respondent (Ct. Rec. 9). Respondent moved to Dismiss claiming the petition was time-bared by 28 U.S.C. § 2244(d) (Ct. Rec. 12). In response, Petitioner filed a Motion for Order to Stay Proceedings requesting a stay until Petitioner's sentence was amended (Ct. Rec. 18 at 3).
Petitioner's sentence was amended in January 2010 (Ct. Rec. 20 at 5), and Petitioner requested that the Court lift the stay (Ct. Rec. 20 at 1). Petitioner argues that since his sentence was amended, the Respondent's statute of limitations argument, in its motion to dismiss, is moot because the finality of the previous judgment was destroyed. State v. Harrison, 148 Wn.2d 550, 561 (2003). Accordingly, Petitioner wants Respondent to answer the habeas motion.
Respondent agrees that the Court should lift the stay, cancel the hearing on the pending motion to dismiss, and set a briefing schedule for Respondent's answer (Ct. Rec. 21 at 2; Ct. Rec. 20 at 3). Accordingly,
IT IS ORDERED that:
1. Petitioner's Motion to Lift Stay (Ct. Rec. 20) is GRANTED.
2. Respondent is ordered to answer Petitioner's § 2254 Motion within 45 days of this Order.
3. Petitioner shall serve and file a reply, if any, within 30 days of service of Respondent's answer.
4. All other pending motions, if any, are DENIED AS MOOT.
5. The District Court Executive is directed to:
a. File this Order;
b. Send copies to counsel; and
c. Set a hearing on Petitioner's § 28 U.S.C. § 2254 Motion, without oral argument, for December 27 2010.DATED this 21st day of September, 2010.