Free Motion to Stay - District Court of California - California

Case 3:08-cv-01009-JSW

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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 ANYA M. BINSACCA Supervising Deputy Attorney General STEVEN G. WARNER, State Bar No. 239269 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5747 Fax: (415) 703-5843 Email: [email protected]

9 Attorneys for Respondent Warden Ben Curry SF2008401505 10 11 12 13 14 15 16 17 18 19 20 21 22 INTRODUCTION Cleve Otis Hulsey filed a Petition for Writ of Habeas Corpus, contending that his due v. BEN CURRY, Warden, Respondent. CLEVE OTIS HULSEY, Petitioner, C 08-1009 JSW RESPONDENT'S REQUEST FOR STAY PENDING ISSUANCE OF THE MANDATE IN HAYWARD Judge: The Honorable Jeffrey S. White · IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

23 process rights were violated by the Board of Parole Hearings' 2006 parole unsuitability finding. 24 The Court ordered a response to the Petition. On May 16, 2008, the Ninth Circuit granted en 25 banc review in Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008), reh'g en banc granted, _ 26 F.3d , No. 06-55392, 2008 WL 2131400 (9th Cir. filed May 16, 2008), and oral argument is 27 scheduled for June 24, 2008. The en banc court in Hayward may decide whether this Court has

28 jurisdiction over this case, and the appropriate standard to be applied if there is jurisdiction.
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Therefore, Respondent requests a stay of this case pending the issuance of the mandate in

2 Hayward. 3 4 5 6 7 8 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

9 staying the case pending the resolution of other proceedings where a stay would be "efficient for 10 11 [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

12 consider the possible damage that may result, the hardship or inequity that a party may suffer, 13 and the orderly course of justice, in terms of simplifying or complicating the issues, proof, and

14. questions of law, that could result from the issuance of a stay. Lockyer v. Mirant Corp., 398 F.3d 15 1098, 1109, 1111 (9th Cir. 2005). A court should also take into account the existence of similar

16 cases that are pending in the same district court, and the probability that more are likely to be 17 filed. Id. Staying cases that are on the forefront of an issue provides a necessary delay, allowing 18 19 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

20 cases and issuing a stay would prevent unfairness and serve the interests of judicial economy, the 21 Court should exercise its discretion and stay this matter pending the issuance of the mandate in

22 Hayward. 23 24 25 26 Granting a stay in this case serves the interests of judicial order and economy. On May 16, 2008, the Ninth Circuit granted rehearing en banc in Hayward. Hayward v. Marshall, 512 A. Moving Forward with This Case Before the Finality of Hayward Does Not Serve the Interest of Judicial Economy.

27 F.3d 536 (9th Cir. 2008), reh'g en banc granted, _ F.3d , No. 06-55392, 2008 WL 2131400 28 (9th Cir. filed May 16, 2008). At issue before the en banc panel in Hayward are two threshold
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issues which are necessary to the resolution of this case: 1) whether California has created a

2 federally protected liberty interest in parole for life inmates, and 2) if a liberty interest is created, what process is due under clearly established Supreme Court authority. Resolution of these issues could establish that Petitioner does not have a federally protected liberty interest in parole, potentially allowing the Court to dismiss his claims for lack of jurisdiction without requiring briefing from the parties. Moreover, it would be wasteful to proceed in this case without the 7 Ninth Circuit's holdings in these matters, as the parties would need to brief issues that will be 8 decided en bane and then submit supplemental briefing to apply the law as clarified in the en

9 banc decision. The two rounds of pleadings may unnecessarily complicate the matters raised and 10 would impair the orderly course of justice. Waiting for the resolution of Hayward would thus 11 conserve Court resources, and prevent the Court from having to revisit this matter if Hayward is

12 modified or reversed. 13 A stay would also serve judicial order and economy by maintaining uniform treatment of

14 like suits, as once the law is settled it can be uniformly applied. In many habeas petitions 15 challenging California parole decisions, the Ninth Circuit has sua sponte stayed submission of

16 the cases until the resolution of Hayward. See, e.g., Tolliver v. Carey, no. 07-15347; Boatman v. 17 Brown, no. 05-16199; Smiley v. Hernandez, no. 06-55727; Valdivia v. Brown, no. 08-15650; 18 Johnson v. Newland, no. 04-16712; Varner`w. Brown, no. ;05-16029. ; Johnson- v. Finn, no. 0619 20 21 22 23 17042; Clark v. Shepherd, no. 06-55065; Cooke v. Solis, no. 06-15444. Granting a stay would therefore conserve judicial resources and serve the Court's interest in orderly managing these proceedings. 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

24 otherwise avoidable hardship on Petitioner. As discussed above, if the parties proceed in this 25 case additional briefing will likely be needed after the decision in Hayward, perhaps delaying 26 final resolution. Also, even if this court decides this case before Hayward, it is likely the losing 27 party will file an appeal, and that appeal may be delayed pending resolution of Hayward. (See 28 Arg. I.A.)
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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 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Dated: June 23, 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 ANYA M. BINSACCA Supervising Deputy Attorney General

STEVEN G. WARNER Deputy Attorney General Attorneys for Respondent

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DECLARATION OF SERVICE BY U.S. MAIL Case Name: Case No.: 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 June 23, 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 internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Cleve Otis Hulsey, E-53226 Correctional Training Facility FW-235 P.O. Box 689 Soledad, CA 93960-0686 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 June 23, 2008, at San Francisco, California. Cleve Hulsey v. Ben Curry, Warden U. S. D. C., N. D., San Francisco Div., C 08-1009 JSW

J. Baker Declarant
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/ Signature