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Burns v. Kane

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


July 20, 2009

SCOTT BURNS, PETITIONER,
v.
A.P. KANE, WARDEN RESPONDENT.

ORDER

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the May 28, 2004, decision by the Board of Prison Terms finding him unsuitable for parole.

On March 16, 2009, the district court adopted finding and recommendations recommending this matter be stayed pending the Ninth Circuit's decision in Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008), reh'g en banc granted, __ F.3d __, No. 06-55392 (9th Cir. filed May 16, 2008). On July 6, 2009, the previous Magistrate Judge assigned to this matter lifted the stay and submitted this action for decision, noting that almost a year had passed since the stay was recommended and Hayward was still pending. After the stay was lifted this matter was transferred and petitioner's petition was reviewed. On July 15, 2009, petitioner filed a motion to have the stay reinstated.

Review of the petition reveals that it is unlikely that the Ninth Circuit's ruling in Hayward would alter the determination of petitioner's claim. While it is likely that the Hayward decision will provide some guidance in analyzing parole habeas cases, there are numerous other decisions from the Ninth Circuit which bear on the issues in petitioner's habeas petition. See Superintendent v. Hill, 472 U.S. 445, 457 (1985); Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2006); Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1127-28 (9th Cir. 2006); Irons v. Carey, 505 F.3d 846, 851 (9th Cir. 2007). Moreover, a stay would be indefinite and potentially lengthy since there is no set date for a decision in Hayward.

Accordingly, IT IS HEREBY ORDERED that petitioner's July 15, 2009, motion to reinstate the stay in this matter is denied.

20090720

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