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Smith v. Lockyer

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


March 18, 2010

ANTHONY BERNARD SMITH, JR., PETITIONER,
v.
BILL LOCKYER, ET AL., RESPONDENTS.

ORDER

Petitioner is a state prisoner proceeding pro se with an application for writ of habeas corpus under 28 U.S.C. § 2254. On August 3, 2007, the court granted petitioner's claim of jury coercion but denied the petition in all other respects. Respondents appealed the court's ruling and petitioner cross--appealed. On September 8, 2009, the U.S. Court of Appeals for the Ninth Circuit affirmed the grant of the petitioner's jury coercion claim and the denial of all other claims. See Docket No. 83. The Ninth Circuit issued its mandate on November 30, 2009. See Docket No. 84. Two days later, petitioner moved this court to "issue an order and writ of habeas corpus" pursuant to the Ninth Circuit's decision. Mot. at 1 (Docket No. 85). The court held its review of the motion in abeyance to allow respondents time to decide whether they would file a petition for certiorari before the U.S. Supreme Court. See Order at 3 (Docket No. 87).

In compliance with the court's order, respondents have notified the court that they filed a petition with the Supreme Court on February 12, 2010. See Notice (Docket No. 88). Given that petitioner still has several years to serve on the determinate sentence that is not at issue in respondents' appeal of the Ninth Circuit's decision, the court finds it both efficient and equitable to continue to hold petitioner's motion to issue a writ of habeas corpus in abeyance. The respondents will notify the court within seven days of receiving the Supreme Court's decision on whether to grant their petition for writ of certiorari.

Accordingly, IT IS HEREBY ORDERED that:

1. The motion to issue a writ of habeas corpus (Docket no. 85) remains held in abeyance until the U.S. Supreme Court issues its decision on respondents' petition for writ of certiorari; and

2. Respondents shall notify the court of the Supreme Court's decision on their petition for writ of certiorari within seven days of receiving that decision.

20100318

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