Free Motion to Stay - District Court of California - California

Case 3:07-cv-04833-MMC

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Filed 06/02/2008

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EDMUND G . BROWN JR . Attorney General of the State of Ca lifo rnia DA NE R. GILLETIE Chief Assistant Attorney General JULIE L. GA RLAN D Seni or Assistant Att orne y General A NYA M . BI NSACCA Supervising Deputy Attorney General A MAN DA J. M URRAY, Slate Bar No . 223829 Deputy Attorney Gen eral

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455 Golden Gate Avenue. Suite 11000
Sa n Franc isco. CA 94 102-7004 Telephone: (4 15) 703 -574 1 Fax: (415) 703-5843

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Email: [email protected]

9 Attorneys for Respondent
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IN TIlE UN ITED STATES DISTRICT COURT FOR THE NORT HERN DIST RICT O F CA LIFO RN IA SAN FRA NCI SCO DIV ISIO N EL K IN G O M EZ, C 07-4833 MM C Petitioner, R ESPOND E NT'S R EQ UEST FO R STA Y P EN DI NG ISS UANC E OF T ilE M AN DAT E IN HArWARD Judge: Respondents. The Honorable Maxine M . Chesney

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v.
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B. CU R R Y, W a r d en, 1l0ARD OF PRI SO N T E RMS,
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Petitioner tiled a Petition for Writ of Habeas Corpus, contending that his due process rights
were vio lated by the Board of Paro lc Hearings' 2005 deci sion findi ng him unsuitable for paro le.

23 He also alleged that the Board failed to consider the statutory criteria for setting a parole release 24 date and that his equal protection rights were violated. The Court ordered a response to the 25 Petition. On May 16, 2008, the Ninth Circuit granted en bane review in Hayward v. Marshall,
26 512 F.3d 536 (9th Cir. 2008), reh'g ell bane granted, _ F.3d ~ 2008 WI. 2 131400 (9th Cir.

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filed May 16, 2008), and set oral argument for June 24, 2008. The en bane court in Hay ward

28 may decide whether this Court has jurisdiction over this case, and the appropriate standard to be
Req. for Stay

Gomez v, Cuny C 07-4833 f\,{.'.tC

Case 3:07-cv-04833-MMC

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applied if there is jurisdiction . Th erefore, Respondent requests a stay of this case pendin g the 2 issuance of the mandate in Hayward.
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I.
Til E COU RT SHO UL D EXE RC ISE ITS DISCR ETI ON AND ST AY T IllS MA TTE R PENDI NG ISSUANC E O FTII E MANDAT E IN HAYWA RD BE CA USE BOTII r ne BALANCE O F T ilE INT ER ESTS AND CO NSID ERATI O NS O F .JUDIC IA L ORD ER AN D ECONO~IY FA VO R G RANT ING A STA Y.

A trial court has discretion to ensure the just and efficient dctenni nation of a case by

9 staying it pend ing the resolution of other proceedin gs where a stay would be "e fficient for [thc
10 court's} docket and the fairest course for the parties." Leyva v. Certified Grocers ofCal.,

11 593 F.2d 857, 863 (9th Cir. 1979). In dcte nni ning whether to grant a stay, a court should
esult, the hardship or ine uity that a party may suffer, q 12 consider the poss ible damage that may n..

13 and the orderly course of justice, in tcnns of simplifying or complicating the issues, proof, and 14 questions oflaw, that could result from the issuance of a stay. Locky er v. Mira nt Corp., 398 F.3d 15 1098, 1109,11 11 (9th Cir. 2005) . A court should also take into acco unt the existence of similar 16 cases that are pendi ng in the same district court, and the probability that more are likely to be 17 filed. ld. Staying eases that are on the forefro nt of an issue provides a necessary dela y, allowing 18 for resolution of the issues and resulting in uniform treatment of like suits. Id. 19 20 21 As the resolution of Hay ward could significantly impact this case and numerous similar cases and issuing a stay would prevent unfairn ess and serve the interests ofjudicial economy, the Court should exercise its discretion and stay this matter pend ing the issuance of thc mandate in

22 Hay ward.

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A.

:\ I ovi n~

Forward " p Th is Case Before th e Fina lity of ith Hayward Does Not Sene th e Inter est of J udicial Eco nomy.

Granting a stay in this case serves the interests of judicial order and economy. On May 16, 2008, the Ninth Circuit granted rehearing en bane in Hayward. (Ex . t .) At issue before the en bane panel in Hayward are 1\"'0 threshold issues which arc necessary to the resolution of this case: I) whether California has created a federally protected liberty interest in parole for life
Req. for Stay Gomez v. Curry C 07-4833 MMC

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Case 3:07-cv-04833-MMC

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inmates. and 2) if a liberty interest is created. what process is due under clearly established 2 Supreme Co urt authority. Resolution ofthcse issues could establish that Petitioner does not have

3 a federally protected liberty interest in parole. potentially allowing the Co urt to dismiss his 4 claims for lack of jurisdiction witho ut requiring brie fing from the parties. Moreo ver. it wou ld be 5 6 wasteful to proceed in this case witho ut the Ninth Circuit' s holdings in these matters. as the parties would need to brief issues that will be decided en bane and then submit supplemental

7 briefing to apply the law as clarified in the en bane deci sion . The two rounds of pleadings ma y 8 9 unnecessarily complicate the matters raised and would impair the orderly course ofj ustice. Waiting for the resoluti on of Hayward would thus conserve Co urt resources, and prevent the

10 Court fro m having to revisit this matter if Hayward is modifi ed or reversed . 11 12 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 unifonnly applied . In many habeas petitions

13 challenging California parole decisions, the Ninth Circuit has sua sponte stayed submission of 14 thc 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. 06-55 727; Valdivia v. Brown, no. 08-15 650 ;

16 Johnson v. Ne.....land. no. 04-16 712; Vam er v. Brown. no. 05 - 16029; Johnson v. Finn. no. 0617
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17042; Clark v. Sheph erd, no. 06- 55065 ; Caake v. Salis, no. 06-15444 . Granting a stay wou ld therefore conserve judicial resou rces and serve the Court ' s interest in orderly ma naging these proceedings.

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B.

A S tay \ Vould Not Un fa ir ly Delay Petition er in Pursuin g lIis C laims.

A stay of this case at the district level would not unfairly impose any additional or otherwise avoidable hard ship on Petiti oner. As discussed above. if the parties proceed in this

23 ease additional briefing will likcly be needed after the decision in Hayward, perhaps delaying 24 25
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final reso lution. Also, even if this court decides this case before Hay ward, it is likcly the losing party will file an appeal, and that appea l may be delayed pending re solution of Hayward. (See Arg. I.A.)

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Req . for Stay

Gomez I ', Curry
C 07-483 3 MMC

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Case 3:07-cv-04833-MMC

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CO NC LUSIO N 2 When the equiti es arc balan ced, the parties' interests and the interests ofjudicial economy

3 support staying this case pending the final resoluti on ofHayward. Staying this case until 4 challenges to Hayward arc resolved and that decision becom es final promotes the orderly 5 resolution of this matter. and will assist in maintaining unifonnity oflike suits pend ing before 6 this Co urt and similar cases that will be filed in the future. Respondent therefore requ ests that 7 the Court exercise its discretion to stay this matter pending issuance of the mandate in Hayward. 8 9 Respectfull y submitted,
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Dated: May 3 1, 2008

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EDMUND G. BROWN JR . Attorney General of the State of California DANE R. GILLElTE Chief Assistant Attorney General JU LIE L. GARLAND Senior Assistant Attorney General ANYA M. BINSACCA Supervj ing Deputy Attorney General

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'"l2~!lOJ:l. orpd

A DA J. MURRAY Deputy Attorne y dcn<;fjll Atto rneys for Respondent

Sf2llOIW)l J.46

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Rcq. for Stay

Gomez v. Curry
C 07-4833 MMC

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Case 3:07-cv-04833-MMC

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Filed 06/02/2008

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DECLARATIO:,/ OF SE RVIC E BY U.S. Case Name:
No.:

~IAIL

Go mez v. Curl}'
M~I C

C lI7-1833

I declare : I am employed in the O tlicc of the Attorney Ge neral, which is the o ffice of a member of the Ca liforn ia State Bar, at wh ich member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am fami liar with the business pract ice at the Office of the Attorney General for collection and processing of co rrespondence for mai ling with the Un ited States Postal Service. In accordance with that practice, co rrespondence placed in the internal mail collection sy stcrn at the O ffice o f the Att orney General is deposited with the United States Postal Service that same da y in the ordinary co urse of bu siness.

On June 2. 2008, J served the attached

RES I'ON DENT'S R~:Q lJ~: ST FOR STA Y I' ENDI NG ISSUANCE OF TIl E MANDAT E IN HAYWAR D
by placin g a true copy ther eof enclosed in a sea led en velope with postage thereon fully prepaid. in the intcmal mail collection systcrn at the O ffice o f the Att orney General at 455 Goldcn Ga te Avenue. Suite 11 000 . San Francisco, CA 94 102-7004. addressed as follows: El ki n Gomez... 10:-44 776

Corrcctional Training Facillty 1'.0 . Box 689
F-20S I.

Soledad, CA 93960-0686 In Pro Pcr
1declare under penalty of pcrjury under the laws of the State o f Ca liforn ia the forego ing is tru e and co rrect and that this declaration was ex ecuted on Jun e 2. 2008, at San Francisco. California.

M.M. Argarin Declarant