IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
July 6, 2011
DANNY RAY HORNING PETITIONER,
VINCENT CULLEN, ACTING WARDEN CA. STATE PRISON AT SAN QUENTIN, RESPONDENT.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
DEATH PENALTY CASE
Petitioner's present counsel desire federal permission for appointment in connection with filing and participating in state exhaustion proceedings possibly contemplated by the court order of March 21, 2011.
Because the factual basis which stood as the reason for tolling the AEDPA limitations period on exhaustion is singular in nature; because petitioner's counsel are intimately familiar with the issue which arose during the investigative phase for preparing the federal petition; and most importantly, because the issue involved is not something which could reasonably have been developed previously as the "innocence letter" standing as the basis for the new issue(s) was disclosed to petitioner's counsel only during the investigative phase for the filing of the federal petition: the undersigned finds in this case that petitioner's federal counsel may engage in state exhaustion proceedings in the event this court agrees to stay the processing of the federal petition pending exhaustion proceedings.*fn1 This permission applies to all claims presented on state exhaustion as it makes little sense logistically to sever the claim(s) on which the 60 day equitable tolling of the entire federal petition's timely filing date was based from all other to-be-exhausted claims.*fn2
The above authorization is without prejudice to any argument respondent has, or desires to preserve, regarding statute of limitations issues.