Free Motion to Stay - District Court of California - California

Case 3:07-cv-05103-MMC

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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 STACEY D. SCHESSER, State Bar No. 245735 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5774 Fax: (415) 703-5843 Email: Stacey. [email protected]
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9 Attorneys for Respondent Warden Ben-Curry 10 11 12 13 14 15 16 17 18 19 20 21 22 23 INTRODUCTION Rico filed a Petition for Writ of Habeas Corpus, contending that his due process rights were violated by the Board of Parole Hearings' 2006 decision finding him unsuitable for parole. The v. BEN CURRY, Warden, Respondent. DANIEL RICO, Petitioner, C 07-5103 MMC RESPONDENT'S REQUEST FOR STAY PENDING ISSUANCE OF THE MANDATE IN HA YWARD; ALTERNATIVE REQUEST FOR AN EXTENSION OF TIME Judge: The Honorable Maxine M. Chesney IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

24 Court ordered a response to the Petition. On May 16, 2008, the Ninth Circuit granted en banc 25 review in Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008), reh'g en banc granted, _ F.3d 26 No. 06-55392, 2008 WL 2131400 (9th Cir. filed May 16, 2008). The en banc court in Hayward 27 may decide whether this Court has jurisdiction over this case, and the appropriate standard to be 28 applied if there is jurisdiction. Therefore, Respondent requests a stay of this case pending the
Resp't's Req. for Stay Pending Hayward; Alternative Req. for Ext. of Time Rico v. Curry C 07-5103 MMC

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issuance of the mandate in Hayward. Should this Court deny this request for a stay, Respondent

2 alternatively requests an extension of time of thirty days from the Court's disposition of this 3 request to file a responsive pleading. 4 5 6 7 8 9 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

10 it pending the resolution of other proceedings where a stay would be "efficient for [the court's] 11 12 13 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

14 justice, in terms of simplifying or complicating the issues, proof, and questions of law, that could 15 result from the issuance of a stay. Lockyer v. Mirant Corp., 398 F.3d 1098, 1109, 1111 (9th Cir. 16 2005). A court should also take into account the existence of similar cases that are pending in 17 the same district court, and the probability that more are likely to be filed. Id. Staying cases that 18 are on the forefront of an issue provides a necessary delay, allowing for resolution of the issues

19 and resulting in uniform treatment of like suits. Id. 20 21 As the resolution of Hayward could significantly impact this case and numerous similar cases, and issuing a stay would prevent unfairness and serve the interests of judicial economy, the

22 Court should therefore exercise its discretion and stay this matter pending the issuance of the 23 mandate in Hayward. 24 25 26 Granting a stay in this case serves the interests of judicial order and economy. On May 16, A. Moving Forward with this Case Before the Finality of Hayward Does Not Serve the Interest of Judicial Economy.

27 2008, the Ninth Circuit granted rehearing en banc in Hayward. (Ex. 1.) At issue before the en 28 bans panel in Hayward are two threshold issues which are necessary to the resolution of this
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case: 1) whether California has created a federally protected liberty interest in parole for life

2 inmates; and 2) if a liberty interest is created, what process is due under clearly established 3 Supreme Court authority. Resolution of these issues could establish that Petitioner does not have

4 a federally protected liberty interest in parole, potentially allowing the Court to dismiss his 5 claims for lack of jurisdiction without requiring briefing from the parties. Moreover, it would be

6 wasteful to proceed in this case without the Ninth Circuit's holdings in these matters, as the 7 parties would need to brief issues that will be decided en banc and then submit supplemental 8 briefing to apply the law as clarified in the en banc decision. The two rounds of pleadings may 9 unnecessarily complicate the matters raised and would impair the orderly course of justice. 10 Waiting for the resolution of Hayward would thus conserve Court resources, and prevent the 11 ,12 13 Court from having to revisit this matter ifHayward is modified or reversed. A stay would also serve judicial order and economy by maintaining uniform treatment of like suits, as once the law is settled it can be uniformly applied. In many habeas petitions

14 challenging California parole decisions, the Ninth Circuit has sua sponte stayed submission of 15 the cases until'the resolution of Hayward. See, e.g., Tolliver v. Carey, no. 07-15347; Boatman v. 16 Brown, no. 05-16199; Smiley v. Hernandez, no. 06-55727; Valdivia v. Brown, no. 08-15650; 17 Johnson v. Newland, no. 04-16712; Varner v. Brown, no. 05-16029; Johnson v. Finn, no. 0618 19 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

20 orderly managing these proceedings. 21 22 23 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 otherwise avoidable hardship on Petitioner. As discussed above, if the parties proceed in this case

24 additional briefing will likely be needed after the decision in Hayward, perhaps delaying final 25 resolution. Also, even if this Court decides this case before Hayward, it is likely the losing party 26 will file an appeal, and that appeal may be delayed pending resolution of Hayward. (See Arg. 27 I.A.) 28
Resp ' t' s Req. for Stay Pending Hayward; Alternative Req. for Ext. of Time
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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 Alternatively, should this Court decline to issue a stay, Respondent respectfully requests an

9 extension of time to file a responsive pleading. Respondent requests that the Court grant an 10 additional thirty days from the disposition of this Motion to file an Answer or Motion to Dismiss. 11 12 13 14 15 16 17 18 19 20 21 22 23 24
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Dated: June 18, 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

STACEY D. SCHESSER Deputy Attorney General Attorneys for Respondent

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Resp't's Req. for Stay Pending Hayward; Alternative Req. for Ext. of Time

Rico v. Curry

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DECLARATION OF SERVICE BY U.S. MAIL Case Name: No.: Rico v. Curry

C 07-5103 MMC

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 18, 2008, I served the attached RESPONDENT'S REQUEST FOR STAY PENDING ISSUANCE OF THE MANDATE IN HAYWARD; ALTERNATIVE REQUEST FOR AN EXTENSION OF TIME [PROPOSED] ORDER 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: Daniel Rico, H-95412 Correctional Training Facility Central F-227L 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 18, 2008, at San Francisco, California.

L. Santos Declarant
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