The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
ORDER DENYING PETITIONER'S EMERGENCY MOTION FOR STAY OF CUSTODY (Doc. 22)
Petitioner is a state prisoner proceeding through with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On November 14, 1011, Petitioner filed his written consent to the jurisdiction of the United States Magistrate Judge. (Doc. 9). On November 18, 2011, Respondent filed a similar written consent to the Magistrate Judge's jurisdiction. (Doc. 10).
The instant petition was filed on October 14, 2011, challenging Petitioner's November
12, 2009 conviction in the Inyo County Superior Court of domestic battery and his sentence to 36 months' probation, which included a 45-day sentence in the Inyo County Jail that is the subject of the instant motion for stay of custody. (Doc. 1). On November 30, 2011, Respondent filed an Answer to the petition, arguing that Petitioner's claim must be rejected because no clearly established federal law exists on the issue of whether a criminal defendant must be advised of his right to testify and must also personally waive that right, and that Petitioner's claim is barred under Teague v. Lane, 489 U.S. 288 (1989), which prohibits the application of a "new" rule of law retroactively in federal habeas corpus proceedings to invalidate a final state criminal conviction. (Doc. 11, pp. 7-8). Petitioner filed a Traverse on March 2, 2012. (Doc. 21).
On October 23, 2012, Petitioner filed the instant emergency motion for stay of custody, based upon events that transpired at a September 10, 2012 telephonic hearing in the Inyo County Superior Court to address the question of lifting the stay on Petitioner's 45-day sentence in the Inyo County Jail. (Doc. 22, Ex. C). At the hearing, the prosecutor contended that the parties had agreed to a six month continuance of the execution of the sentence, presumably to allow this Court to decide the merits of the instant habeas petition. Petitioner's counsel contended that the stay should remain in effect until this Court's decision is issued. After considering the issue, the Superior Court judge ruled as follows:
I don't---there is not any factual basis on which to conclude that a decision on the petition for writ of habeas corpus is imminent. It's a matter of public record that in the eastern district of California many writs of habeas corpus are not decided in the lifetime of the petitioner, given their case load, and I don't think that there's any reason to expect that after the six months or more that have passed since the petition was filed that a decision is going to occur in the near future.
The pendency of a petition for writ of habeas corpus is not a substantial basis for stay. The defendant's-the merits of the defendant's legal positions have been argued and decided in the Superior Court and in the appellate division; the request for transfer to the Court of Appeal in the California court system was denied on the merits.
In the circumstances, a further stay of the defendant's custodial sentence is not advised. I'll set a date in September-we're-I'll set a date in October-that will be well past the six-month period that might have been contemplated at the last hearing-for decision.
Obviously if there's an intervening decision from the U.S. District Court, then that decision would have precedence.
(Doc. 22, Ex. C, pp. 7-8).
After discussion, the parties and the court agreed on a date of October 25, 2012, for Petitioner to report to serve his 45-day sentence in the county jail. (Id., p. 10). For the reasons set forth below, the Court will deny Petitioner's emergency motion for a stay of custody.
Although Petitioner cites no authority--federal or state, controlling or persuasive, statutory or 3 case law--to support his request for a stay, Petitioner contends that, if granted, the instant petition 4 would "obviate[ ] petitioner's conviction, ...