Free Motion to Stay - District Court of California - California

Case 3:08-cv-02858-MHP

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EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General JENNIFER A. NEILL Supervising Deputy Attorney General SCOTT C. MATHER, State Bar No. 190912 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5709 Fax: (415) 703-5843 Email: [email protected]

9 Attorneys for Respondent Robert L. Ayers 10 11 12 13 14 15 16 17 18 19 20 21 22 INTRODUCTION Petitioner Jesse Reed filed a Petition for Writ of Habeas Corpus, contending that his due v. ROBERT L. AYERS, Warden, Respondent. JESSE REED, Petitioner, C08-2858 MHP RESPONDENT'S REQUEST FOR STAY PENDING ISSUANCE OF THE MANDATE IN HAYWARD Judge: The Honorable Marilyn H. Patel IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

23 process rights were violated by the Governor's June 2007 decision finding him unsuitable for 24 parole. This Court ordered a response to the Petition. On May 16, 2008, the Ninth Circuit 25 granted en banc review in Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008), reh.'g en banc 26 granted, 527 F.3d 797 (9th Cir. 2008). The en bane court in Hayward may, decide whether this 27 Court has jurisdiction over this case, and the appropriate standard to be applied if there is 28 jurisdiction. Therefore, Respondent requests a stay of this case pending the issuance of the
Resp't's Req. for Stay Pending Mandate in Hayward
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1 mandate in Hayward. 2 3 4 5 6 ARGUMENT I. THE COURT SHOULD EXERCISE ITS DISCRETION AND STAY THIS MATTER PENDING ISSUANCE OF THE MANDATE IN HA YWARD BECAUSE BOTH THE BALANCE OF THE INTERESTS AND CONSIDERATIONS OF JUDICIAL ORDER AND ECONOMY FAVOR GRANTING A STAY. A trial court has discretion to ensure the just and efficient determination of a case by staying it pending the resolution of other proceedings where a stay would be "efficient for [the court's] docket and the fairest course for the parties." Leyva v. Certified Grocers of Cal., 593 F.2d 857, 863 (9th Cir. 1979). In determining whether to grant a stay, a court should consider the possible damage that may result, the hardship or inequity that a party may suffer, and the orderly course of justice, in terms of simplifying or complicating the issues, proof; and questions of law, that could result from the issuance of a stay. Lockyer v. Mirant Corp., 398 F.3d 14 15 1098, 1109, 1111 (9th Cir. 2005). A court should also take into account the existence of similar cases that are pending in the same district court, and the probability that more are likely to be

16 filed. Id. Staying cases that are on the forefront of an issue provides a necessary delay, allowing 17 18 for resolution of the issues and resulting in uniform treatment of like suits. Id. As the resolution of Hayward could significantly impact this case and numerous similar

19, cases and issuing a stay would prevent unfairness and serve the interests of judicial economy, this 20 Court should therefore exercise its discretion and stay this matter pending the issuance of the 21 22 23 24 25 Granting a stay in this case serves the interests of judicial order and economy. On May 16, 2008, the Ninth Circuit granted rehearing en bans in Hayward and argument was heard on mandate in Hayward. A. Moving Forward with this Case Before the Finality of Hayward Does Not Serve the Interest of Judicial Economy.

26 June 24, 2008. At issue before the en banc panel in Hayward are two threshold issues which are 27 necessary to the resolution of this case: 1) whether California has created a federally protected 28 liberty interest in parole for life inmates, and 2) if a liberty interest is created, what process is due
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under clearly established Supreme Court authority. Resolution of these issues could establish

2 that Petitioner does not have a federally protected liberty interest in parole, potentially allowing 3 this Court to dismiss his claims for lack of jurisdiction without requiring briefing from the

4 parties. Moreover, it would be wasteful to proceed in this case without the Ninth Circuit's 5 holdings in these matters, as the parties would need to brief issues that will be decided en banc 6 and then submit supplemental briefing to apply the law as clarified in the en banc decision. The 7 two rounds of pleadings may unnecessarily complicate the matters raised and would impair the 8 orderly course of justice. Waiting for the resolution of Hayward would thus conserve Court

9 resources, and prevent this Court from having to revisit this matter if Hayward is modified or 10 reversed. 11 A stay would also serve judicial order and economy by maintaining uniform treatment of

12 like suits, as once the law is settled it can be uniformly applied. In many habeas petitions 13 challenging California parole decisions, the Ninth Circuit has sua sponte stayed submission of

14 the cases until the resolution of Hayward. See, e.g., Tolliver v. Carey, no. 07-15347; Boatman v. 15 Brown, no. 05-16199; Smiley v. Hernandez, no. 06-55727; Valdivia v. Brown, no. 08-15650; 16 Johnson v. Newland, no. 04-16712; Varner v. Brown, no. 05-16029; Johnson v. Finn, no. 0617 18 17042; Clark v. Shepherd, no. 0.6-55065; Cooke v. Solis, no. 06-15444. Granting a stay would therefore conserve judicial resources and serve the Court's interest

19 in orderly managing these proceedings. 20 21 B. A Stay Would Not Unfairly Delay Petitioner in Pursuing His Claims.

A stay of this case at the district level would not unfairly impose any additional or

22 otherwise avoidable hardship on Petitioner. As discussed above, if the parties proceed in this 23 case additional briefing will likely be needed after the decision in Hayward, perhaps delaying

24 final resolution. Also, even if this Court decides this case before Hayward, it is likely the losing 25 party will file an appeal, and that appeal may be delayed pending resolution of Hayward. (See 26 Arg. I.A.) 27 // 28 //
Resp't's Req. for Stay Pending Mandate in Hayward
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CONCLUSION When the equities are balanced, the parties' interests and the interests of judicial economy support staying this case pending the final resolution of Hayward. Staying this case until

4 challenges to Hayward are resolved and that decision becomes final promotes the orderly 5 resolution of this matter, and will assist in maintaining uniformity of like suits pending before 6 this Court and similar cases that will be filed in the future. Respondent therefore requests that 7 the Court exercise its discretion to stay this matter pending issuance of the mandate in Hayward. 8 Finally, Respondent's deadline for filing an Answer is October 24, 2008. Accordingly,

9 Respondent requests that if this Court denies Respondent's request for a stay in an order issued 10 on or after September 24, 2008, this Court grant Respondent an additional thirty-day extension of 11 12 13 14 15 16 17 18 19 20 21 22 23 24
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time to file an Answer. Dated: August 14, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant. Attorney General JENNIFER A. NEILL Supervising Deputy Attorney General

SCOTT C. MATHER Deputy Attorney General Attorneys for Respondent

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DECLARATION OF SERVICE BY U.S. MAIL Case Name: No.: Reed v. Ayers r

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I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On August 15, 2008, I served the attached RESPONDENT'S REQUEST FOR STAY PENDING ISSUANCE OF THE MANDATE IN HAYWARD by, placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internalmail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Jesse Reed, D-07717 San Quentin State Prison 1 Main Street San Quentin, CA 94964 in pro per I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on August 15, 2008, at San Francisco, California.

J. Palomino Declarant
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