IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 28, 2008
BARRY FLOYD BRAESEKE, PETITIONER,
BOARD OF PRISON TERMS, ET AL., RESPONDENTS.
FINDINGS AND RECOMMENDATIONS
Petitioner is a California prisoner proceeding pro se with an application for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges the fact that he was denied parole in 2003.
One of the arguments made by petitioner is that the evidence upon which the denial of parole was based is not constitutionally sufficient. The California Supreme Court has recently accepted some cases for review, including In re Jacobsen, 172 P.3d 401 (2007), concerning what evidence needs to appear in the record to support a denial of parole. The United States Court of Appeals for the Ninth Circuit has also elected to rehear en banc the decision rendered in Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008). See Hayward v. Marshall, 527 F.3d 797 (9th Cir. 2008) (Case No. 06-55392). It appears the en banc decision will be rendered after the California Supreme Court's decision in Jacobsen and will also provide further guidance with respect to insufficiency of the evidence claims brought by those denied parole in California.
In light of the above, and in the interest of judicial economy, the court will recommend that this action be stayed pending the Ninth Circuit's en banc decision in Hayward. If this matter is stayed, the parties need take no further action absent further direction from the court.
Accordingly, IT IS HEREBY RECOMMENDED that:
1. This action be stayed pending the Ninth Circuit's en banc decision in Hayward v. Marshall, No. 06-55392; and
2. The Clerk of the Court be directed to administratively close this case.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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