(HC) Cerny v. Dickinson et al, No. 2:2010cv02190 - Document 16 (E.D. Cal. 2010)

Court Description: ORDER signed by Magistrate Judge Kendall J. Newman on 11/3/2010 ORDERING that the 14 findings and recommendations are VACATED; ptnr's 15 motion to stay is GRANTED; this action is STAYED pending a final decision by the Ninth Circuit in case n o. 10-56094; ptnr to notify this court of the Ninth Circuit's decision w/in 30 days after issuance of remittitur demonstrating the finality of the appellate court's decision, and indicate therein whether a further stay is requested; and the clerk to administratively close this case. CASE CLOSED. (Yin, K)
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(HC) Cerny v. Dickinson et al Doc. 16 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 BRUCE ARMAND CERNY, 11 12 13 14 15 16 Petitioner, No. 2:10-cv-2190 GEB KJN P vs. K.L. DICKINSON, et al., Respondent. ORDER / On October 14, 2010, this court issued findings and a recommendation that this 17 action, a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, be dismissed due to 18 petitioner’s failure to apprise the court of his change of address, noting that three orders served at 19 petitioner’s address of record had been returned as “Undeliverable.” 20 On October 22, 2010, petitioner filed a Notice of Change of Address indicating 21 that he was released on parole on August 3, 2010, pursuant to two decisions of the United States 22 District Court for the Central District of California, which upheld petitioner’s challenges to his 23 2003 and 2005 parole hearings: (1) Cerny v. California Board of Prison Terms, Case No. 5:05- 24 cv-0190 R AJW (challenging July 2003 decision of the Board of Prison Terms), and (2) Cerny v. 25 California Board of Parole Hearings, Case No. 2:06-cv-6891 R AJW (challenging March 2005 26 1 Dockets.Justia.com 1 decision of the Board of Prison Terms).1 Both decisions are now on appeal before the Ninth 2 Circuit United States Court of Appeals (Case No. 10-56094); a scheduling order has issued. 3 However, because the Ninth Circuit denied respondent’s motion to stay execution of the District 4 Court’s orders, petitioner remains on parole. 5 The instant action challenges the July 13, 2007 and August 4, 2008 decisions of 6 the Board of Parole Hearings denying petitioner parole. Were the decisions of the Central 7 District final, petitioner’s action before this court would be moot. However, because these 8 matters remain unresolved on appeal, the court finds it appropriate to stay the instant action 9 pending a final decision by the Ninth Circuit. Should further appeals be filed, this court will, 10 seriatim, consider subsequent motions to stay this action. 11 Accordingly, IT IS HEREBY ORDERED that: 12 1. The findings and recommendations issued by this court on October 14, 2010 13 (Dkt. No. 14) are vacated; 14 2. Petitioner’s motion for stay (Dkt. No. 15) is granted; this action is stayed 15 pending a final decision by the Ninth Circuit United States Court of Appeals in Case No. 10- 16 56094; and 17 3. Petitioner shall notify this court of the Ninth Circuit’s decision within thirty 18 (30) days after issuance of the remittitur demonstrating the finality of the appellate court’s 19 decision, and indicate therein whether a further stay is requested. 20 //// 21 //// 22 //// 23 //// 24 //// 25 1 26 The Board of Prison Terms was replaced by the Board of Parole Hearings in July 2005. See Cal. Penal Code § 5075(a). 2 1 4. The Clerk of the Court is directed to administratively close this case. 2 SO ORDERED. 3 DATED: November 3, 2010 4 5 6 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 7 8 cern2190.stay 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3