IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
April 3, 2013
DONALD WILLIAM TARNAWA, PETITIONER,
RUSSELL PURDUE, WARDEN, RESPONDENT.
STIPULATED REQUEST TO ENTER JUDGMENT IN PETITIONER'S FAVOR
FOLLOWING NINTH CIRCUIT REMAND; and [lodged] ORDER
Petitioner, DONALD WILLIAM TARNAWA, by and through his counsel, Assistant Federal Defender David M. Porter, and Respondent, RUSSELL PURDUE, Warden,*fn1 by and through his counsel, Assistant United States Attorney Samantha S. Spangler, hereby stipulate that WHEREAS:
(1) on August 28, 2009, Mr. Tarnawa filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 alleging that the Warden acted in excess of his legal authority and the Mandatory Victims Restitution Act of 1996 by fixing a restitution payment schedule in the absence of a schedule set by the sentencing court;
(2) on March 18, 2011, the district court issued an order that, without addressing the merits, dismissed the petition for failing to exhaust remedies, relying in part on Ward v. Chavez, 2009 U.S. Dist. LEXIS 76744 (D. Ariz. Aug. 27, 2009);
(3) following the entry of judgment and an unsuccessful motion for reconsideration, Mr. Tarnawa filed a pro se notice of appeal on November 1, 2011;
(4) the Ninth Circuit Court of Appeals appointed counsel to represent Mr. Tarnawa, and he filed a motion for summary reversal, noting that the decision relied on by this Court was subsequently reversed by the Ninth Circuit Court of Appeals in Ward v. Chavez, 678 F.3d 1042 (2012);
(5) on February 26, 2013, the Ninth Circuit Court of Appeals issued an order vacating the judgment of this Court and remanding the case for further proceedings; accordingly,
(6) THEREFORE, the parties stipulate and recommend this Court file the order below entering judgment in Mr. Tarnawa's favor in the above-entitled matter.
Dated: March 29, 2013 Respectfully submitted, BENJAMIN B. WAGNER JOSEPH SCHLESINGER United States Attorney Acting Federal Defender /s/ Samantha S. Spangler /s/ David M. Porter SAMANTHA S. SPANGLER DAVID M. PORTER Assistant U.S. Attorney Assistant Federal Defender Attorney for Respondent Attorney for Petitioner RICHARD IVES, Warden DONALD WILLIAM TARNAWA
Pursuant to the February 26, 2013 order of the U.S. Court of Appeals for the Ninth Circuit in the above-entitled matter, the court orders that:
1. The petition for writ of habeas corpus is GRANTED.
2. The Warden is ordered to exempt Mr. Tarnawa from the Inmate Financial Responsibility Program unless the sentencing court specifies the restitution schedule.
3. The Clerk is directed to re-enter judgment and close the case. IT IS SO ORDERED.