(HC) Deary-Smith v. Sherman, No. 2:2020cv00572 - Document 28 (E.D. Cal. 2021)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 6/4/2021 RECOMMENDING 27 Request for Stay be granted and this action be stayed for one year and Petitioner should be required to submit status reports at the 6 month and one-year mark, or immediately upon the final adjudication of the current state court proceedings, whichever is earlier. Referred to Judge Kimberly J. Mueller. Objections due within 21 days after being served with these findings and recommendations. (Henshaw, R)
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(HC) Deary-Smith v. Sherman Doc. 28 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RASHID D. DEARY-SMITH, 12 Petitioner, 13 14 No. 2:20-cv-00572 KJM GGH P v. FINDINGS AND RECOMMENDATIONS THERESA CISNEROS, Acting Warden, 15 Respondent. 16 Petitioner is a state prisoner proceeding with counsel with a petition for writ of habeas corpus 17 18 pursuant to 28 U.S.C. § 2254. Petitioner has filed a status report requesting a stay based on pending 19 state court proceedings that reasonably has the potential to moot this action. ECF No. 27. The state 20 issue involves the applicability of Senate Bill 1437 and amended Cal. Penal Code § 188 (abrogating 21 the “natural and probable consequence” theory to a murder conviction). The issue is currently 22 pending before the California Supreme Court, see People v. Medrano, 42 Cal. App. 5th 1001 (2019), 23 review granted, 459 P.3d 1121 (2020), and several other similar cases set forth in the status report. It 24 may well be that petitioner’s case could be affected by a ruling by the California Supreme Court 25 applying Senate Bill 1437 to attempted murders based on the above “natural and probable 26 consequence” theory, and a retrial or resentencing performed in state court. A stay also potentially 27 //// 28 //// 1 Dockets.Justia.com 1 avoids a protracted litigation in this court concerning a retrospective look at petitioner’s competency 2 to stand trial if petitioner is satisfied with a state court result. 3 Accordingly, IT IS HEREBY RECOMMENDED that: 4 1. Petitioner’s request for a stay (ECF No. 27) be GRANTED; and 5 2. This action should be stayed for one year. Petitioner should be required to submit status 6 reports at the 6 month and one-year mark, or immediately upon the final adjudication of the current 7 state court proceedings, whichever is earlier. 8 These findings and recommendations are submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 10 after being served with these findings and recommendations, petitioner may file written objections 11 with the court. The document should be captioned “Objections to Magistrate Judge's Findings and 12 Recommendations.” Failure to file objections within the specified time may waive the right to appeal 13 the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.1991). 14 Dated: June 4, 2021 15 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 2
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