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Pedro Mcphearson v. Richard B. Ives

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


February 22, 2012

PEDRO MCPHEARSON, PETITIONER,
v.
RICHARD B. IVES, RESPONDENT.

FINDINGS AND RECOMMENDATIONS

Petitioner is a federal prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. By order filed June 18, 2010, this action was stayed by the district court and respondent was directed to file and serve a status report on the first court day of each month and a motion to lift the stay of this action within thirty days of an order by the U.S. District Court for the Northern District of Texas resolving motions filed by petitioner in that court. On January 13, 2011, petitioner filed a status report in which he stated that a "final judgment" was made in his case before the U.S. District Court for the Northern District of Texas on November 30 and December 3, 2010. By order filed January 20, 2011, respondent was directed to file and serve a response to petitioner's status report and, if appropriate, a motion to lift the stay of the action.

On January 31, 2011, respondent filed a status report. In relevant part, respondent requested that the stay continue until resolution by the United States Court of Appeals for the Fifth Circuit of an appeal filed by petitioner from the order entered by the United States District Court for the Northern District of Texas. On December 5, 2011, petitioner filed a motion to lift the stay. Appended to petitioner's motion is an order from the United States Court of Appeals for the Fifth Circuit affirming the judgment of the district court and remanding the matter to that court "for clarification of its intended sentence." United States v. McPhearson, No. 10-11294, slip op. at 4 (November 4, 2011). It is apparent from the Fifth Circuit's order that the clarification to be made by the district court is whether petitioner's sentence has been reduced to 262 months or to 210 months.

In relevant part, the Fifth Circuit noted that petitioner had raised for the first time on appeal the claim raised in the instant action. The Fifth Circuit expressly found that a § 2241 petition is the proper vehicle for that challenge, and that such a challenge must be filed in the district of petitioner's conviction. United States v. McPhearson, slip op. at 3-4. It would appear that whether or not the district court in Texas modifies petitioner's sentence further now has no bearing on the proceedings pending before this court. Accordingly, the stay should be lifted and respondent should be directed to answer the petition forthwith.

In accordance with the above, IT IS HEREBY RECOMMENDED that:

1. Petitioner's December 5, 2011 motion to lift the stay of this action be granted.

2. Respondent be directed to file an answer to the petition within thirty days from the date of any order by the district court adopting these findings and recommendations and to include with the answer any and all transcripts or other documents relevant to the determination of the issues presented in the petition.

3. Petitioner's traverse, if any, be due on or before thirty days from the date respondent's answer is filed.

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 fourteen 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 response to the objections shall be filed and served within fourteen 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).

20120222

© 1992-2012 VersusLaw Inc.



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