Jessie Heredia v. Larry Small
Filing
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ORDER DENYING RESPONDENTS EX PARTE APPLICATION FOR STAY PENDING APPEAL, SETTING BRIEFING SCHEDULE, AND APPOINTING COUNSEL OF RECORD FOR PETITIONER by Judge R. Gary Klausner:After considering respondents Application, as well as the documents filed in support thereof, the Court hereby DENIES respondents Application as respondent has failed to show cause for an expedited ruling. See generally Mission Power Engg Co. v. Contl Cas. Co., 883 F. Supp. 488 (C.D. Cal. 1995) ([T]he evidence must show that the moving partys cause will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures.). The Court notes that petitioners release was ordered within 180 days of the Amended Order, giving respondent un til October 7, 2012 to retry or release petitioner, and therefore, respondent could have applied for a stay pending appeal by regular noticed motion, affording petitioner the opportunity to oppose the same. As such, on the Courts own motion, the Cour t hereby sets a hearing on respondents Application for June 21, 2012, at 10:00 a.m. in Courtroom 4. The Court further sets the following briefing schedule: Respondent shall file a motion for stay pending appeal on or before May 18, 2012, in complianc e with Local Rules 7-4 through 7-8. Petitioner shall file an opposition to the motion on or before May 31, 2012, pursuant to Local Rule 7-9. Respondent shall file his reply to the opposition on or before June 7, 2012, pursuant to Local Rule 7-10. Pet itioner need not be present as the Court is also appointing counsel hereby. The Court requests that the Federal Public Defender for the Central District of California locate counsel for appointment. The Federal Public Defender shall provide the name of counsel for appointment to the Court within 7 days of the date of this Order. Appointed counsel is directed to immediately make arrangements to review the file and secure copies of whatever is necessary in order to properly consult with and advise petitioner regarding the motion. The attorney assigned to this matter shall enter a Notice of Appearance as soon as possible, but no later than 14 days from the date of this Order. 38 (am)
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Federal Public Defender
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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JESSIE HEREDIA,
Petitioner,
vs.
LARRY SMALL, Warden,
Respondent.
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Case No. CV 09-3669-RGK (DTB)
ORDER DENYING RESPONDENT’S
EX PARTE APPLICATION FOR STAY
PENDING APPEAL, SETTING
BRIEFING SCHEDULE, AND
APPOINTING COUNSEL OF RECORD
FOR PETITIONER
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On April 10, 2012, the Court issued an Amended Order Accepting the Report
18 and Recommendation of the Magistrate Judge.
The Magistrate Judge had
19 recommended that habeas relief be granted with respect to petitioner’s claim in
20 Ground Two that the trial court violated his constitutional rights to due process and
21 to a fair trial by invading the “sanctity of the jury’s deliberations” and dismissing
22 Juror No. 9. The Magistrate Judge concluded that the trial court’s dismissal of Juror
23 No. 9 violated petitioner’s Sixth Amendment rights because there was a reasonable
24 possibility that the request for the juror’s removal was impermissibly based on his
25 views of the merits of the case.
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Pursuant to the Court’s Amended Order, Judgment was entered herein on April
27 10, 2012 granting a writ of habeas corpus and ordering that petitioner be released or
28 retried within 180 days of the date of the Amended Order. On April 30, 2012,
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1 respondent filed a timely Notice of Appeal from that Judgment. Concurrently,
2 respondent file an Ex Parte Application for Stay Pending Appeal (“Application”) of
3 the Court’s order granting the writ of habeas corpus, together with a supporting
4 Memorandum of Points and Authorities (“App. Mem.”). Respondent requested an
5 expedited ruling on his Application based on the 180 day compliance deadline. (App.
6 Mem. at 1.) On May 2, 2012, the District Court referred respondent’s Application
7 to the Magistrate Judge for recommendation.
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After considering respondent’s Application, as well as the documents filed in
9 support thereof, the Court hereby DENIES respondent’s Application as respondent
10 has failed to show cause for an expedited ruling. See generally Mission Power Eng’g
11 Co. v. Cont’l Cas. Co., 883 F. Supp. 488 (C.D. Cal. 1995) (“[T]he evidence must
12 show that the moving party’s cause will be irreparably prejudiced if the underlying
13 motion is heard according to regular noticed motion procedures.”). The Court notes
14 that petitioner’s release was ordered within 180 days of the Amended Order, giving
15 respondent until October 7, 2012 to retry or release petitioner, and therefore,
16 respondent could have applied for a stay pending appeal by regular noticed motion,
17 affording petitioner the opportunity to oppose the same. As such, on the Court’s own
18 motion, the Court hereby sets a hearing on respondent’s Application for June 21,
19 2012, at 10:00 a.m. in Courtroom 4. The Court further sets the following briefing
20 schedule: Respondent shall file a motion for stay pending appeal on or before May
21 18, 2012, in compliance with Local Rules 7-4 through 7-8. Petitioner shall file an
22 opposition to the motion on or before May 31, 2012, pursuant to Local Rule 7-9.
23 Respondent shall file his reply to the opposition on or before June 7, 2012, pursuant
24 to Local Rule 7-10. Petitioner need not be present as the Court is also appointing
25 counsel hereby.
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The Court requests that the Federal Public Defender for the Central District of
27 California locate counsel for appointment. The Federal Public Defender shall provide
28 the name of counsel for appointment to the Court within 7 days of the date of this
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1 Order. Appointed counsel is directed to immediately make arrangements to review
2 the file and secure copies of whatever is necessary in order to properly consult with
3 and advise petitioner regarding the motion. The attorney assigned to this matter shall
4 enter a Notice of Appearance as soon as possible, but no later than 14 days from the
5 date of this Order.
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The Clerk of this Court shall serve a copy of this Order on petitioner, the
7 Federal Public Defender, and counsel for respondent.
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9 DATED:
May 11, 2012
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R, GARY KLAUSNER
UNITED STATES DISTRICT JUDGE
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14 Presented by:
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17 David T. Bristow
United States Magistrate Judge
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CLEAR FORM
NOTICE PARTY SERVICE LIST
Case No.
CV 09-3669-RGK (DTB)
Case Title JESSIE HEREDIA v. LARRY SMALL, Warden
Title of Document ORDER DENYING RESPONDENT’S EX PARTE APPLICATION
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