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Montgomery v. Sisto

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


June 19, 2009

BRIAN KEITH MONTGOMERY, PETITIONER,
v.
D.K. SISTO, RESPONDENT.

ORDER

Petitioner is a prisoner proceeding with an application for writ of habeas corpus under 28 U.S.C. § 2254. The court previously ordered the respondent to file an answer to the petition by June 5, 2009. Respondent has moved for a stay of the proceedings, including the filing of an answer, pending the Ninth Circuit's en banc review of Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008), reh'g en banc granted, 527 F.3d 797 (9th Cir. 2008). The respondent requests that the stay be imposed until the Ninth Circuit issues its mandate in Hayward.

Respondent is correct that the Ninth Circuit's en banc decision could have a significant effect on the outcome of the petitioner's application. The "[s]pecial solicitude" that attends this case and many other habeas petitions already pending before the court would be thwarted, and the petitioners prejudiced, if the court were to hazard an incorrect guess about the reasoning and decision of the en banc panel in Hayward, only to start another round of briefing once that decision was announced. Yong v. I.N.S., 208 F.3d 1116, 1120 (9th Cir. 2000) (stating that in habeas cases "[s]pecial solicitude is required because the writ is intended to be a 'swift and imperative remedy in all cases of illegal restraint or confinement'"). On the other hand, the court must be mindful not to impose an indefinite stay that runs the risk of lasting an oppressively long time. See Yong, 208 F.3d at 1020 ("we have never authorized, in the interests of judicial economy, an indefinite, potentially lengthy stay in a habeas case").

Therefore the court will grant a stay until the Ninth Circuit issues its decision. However, the court will not grant the stay to the extent requested by the respondent.

Accordingly, IT IS HEREBY ORDERED that the request for a stay (docket no. 8) is granted in part and denied in part. This action is stayed until the date the Ninth Circuit's en banc decision in Hayward v. Marshall is announced. The respondent shall have sixty days from that date in which to file an answer to the petition.

20090619

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