(HC) Carr, Jr. v. Cate, No. 2:2010cv01778 - Document 21 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 6/6/2011 RECOMMENDING that respondent's 10 motion to stay be denied; respondent be directed to answer the 1 petition w/in 30 days, and ptnr's traverse, if any, be due on or before 30 days of respondent's answer. Referred to Judge Morrison C. England, Jr.; Objections due w/in 14 days. (Yin, K)

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(HC) Carr, Jr. v. Cate Doc. 21 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 CHARLES H. CARR, JR., 11 Petitioner, 12 13 No. 2:10-cv-1778 MCE JFM (HC) vs. MATTHEW CATE, 14 Respondent. 15 FINDINGS AND RECOMMENDATIONS / 16 Petitioner is a state prisoner proceeding through counsel with an application for a 17 writ of habeas corpus pursuant to 28 U.S.C. § 2254. On September 21, 2010, respondent filed a 18 motion for a stay of this action pending disposition of respondent’s appeal from the grant of 19 habeas corpus relief to petitioner in three other related cases1 and pending resolution of two 20 petitions for rehearing en banc filed in the United States Court of Appeals for the Ninth Circuit. 21 In opposition to the motion, petitioner observes, inter alia, that the petitions for rehearing en banc 22 have been resolved. In reply, respondent continues to assert that this action should be stayed 23 ///// 24 ///// 25 1 26 Cases No. 2:04-cv-0584 MCE JFM (HC), 2:05-cv-1870 MCE JFM (HC), and 2:05-cv1871 MCE JFM (HC). 1 Dockets.Justia.com 1 pending disposition of the pending appeals in petitioner’s related cases, an outcome petitioner 2 opposes.2 3 Stays in habeas corpus cases are disfavored. See Yong v. I.N.S., 208 F.3d 1116 4 (9th Cir. 2000). In Yong, the court of appeals noted that “although a short stay may be 5 appropriate in a habeas case to await a determination in a parallel case in the same court, . . . we 6 have never authorized, in the interests of judicial economy, an indefinite, potentially lengthy stay 7 in a habeas case.” Id. at 1120. Since respondent’s motion was filed, the United States Supreme 8 Court has decided Swarthout v. Cooke,131 S. Ct. 859, 861 (2011), which may have substantial 9 bearing on the action at bar. This court finds that judicial economy will not be served by further 10 delay in this case. 11 Accordingly, IT IS HEREBY RECOMMENDED that: 12 1. Respondent’s September 21, 2010 motion for stay be denied; 13 2. Respondent be directed to answer the petition within thirty days from the date 14 of any order by the district court adopting these findings and recommendations, see Rule 4, Rules 15 Governing Section 2254 Cases, and to include with the answer any and all transcripts or other 16 documents relevant to the determination of the issues presented in the application. Rule 5, Rules 17 Governing Section 2254 Cases; and 18 19 3. Petitioner’s traverse, if any, be due on or before thirty days from the date respondent’s answer is filed. 20 These findings and recommendations are submitted to the United States District 21 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 22 days after being served with these findings and recommendations, any party may file written 23 objections with the court and serve a copy on all parties. Such a document should be captioned 24 25 26 2 Petitioner has been released on parole pursuant to the district court’s decision in the related cases and orders of the district court and the court of appeals declining to stay the district court’s ruling in those cases. See Order filed February 24, 2011. 2 1 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 2 objections shall be filed and served within fourteen days after service of the objections. The 3 parties are advised that failure to file objections within the specified time may waive the right to 4 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 5 DATED: June 6, 2011. 6 7 8 9 10 12 carr1778.mts 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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