Opinion
2:23-CV-0113-TLN-DMC-P
09-01-2023
WILLIAM POLLARD, Petitioner, v. ROB ST. ANDRE, Respondent.
ORDER
DENNIS M. COTA, UNITED STATES MAGISTRATE JUDGE.
Petitioner, a state prisoner proceeding with retained counsel, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the Court is Respondent's motion to dismiss, ECF No. 10. The motion has been fully briefed and submitted on the record without hearing.
Respondent argues that the Court should abstain from exercising jurisdiction over this case because state court proceedings are ongoing. In particular, Respondent notes that Petitioner's state court criminal case had been remanded for re-sentencing. In opposition, Petitioner contends that dismissal is not warranted because the state court re-sentencing proceedings do not affect any of the claims raised in the petition, all of which relate to guilt, not sentencing. In reply, Respondent argues that, nonetheless, abstention is required because the underlying criminal judgment at issue is subject to vacatur upon re-sentencing.
Following submission of Respondent's motion on April 21, 2023, Petitioner's counsel filed a letter brief advising the Court of recent developments in state court. See ECF No. 16. It is unclear whether this letter was served on counsel for Respondent, through counsel should have received notice by way of the Court's Electronic Case Filing notification system. In any event, the Court will direct the Clerk of the Court to provide Respondent's counsel a copy of this filing along with a copy of this order.
In Petitioner's counsel's filing, counsel advises that Petitioner was re-sentenced in state court on June 12, 2023, and has been returned to prison. See id. Given that the factual basis of Respondent's motion to dismiss - that state court proceedings are ongoing - seems to have been mooted, the Court is inclined to recommend that Respondent's motion to dismiss be denied and that Petitioner be directed to file an amended petition challenging any amended final judgment issued by the state court upon re-sentencing in June 2023. Because, however, Respondent may have not been provided notice of the state court's disposition, the Court will provide Respondent an opportunity to respond prior to issuing findings and recommendations and submitting Respondent's motion to dismiss to the District Judge for final determination. If Respondent agrees that the current procedural posture of the case and the fling of an amended petition would render the pending motion to dismiss as moot, Respondent shall indicate that the motion is withdrawn.
Accordingly, IT IS HEREBY ORDERED as follows:
1. The Clerk of the Court shall forward to counsel for Respondent a copy of Petitioner's filing at ECF No. 16.
2. Within 14 days of the date of this order, Respondent shall file a response brief to Plaintiff's counsel's submission at ECF No. 16, such brief to specifically indicate whether the pending motion to dismiss is withdrawn.