(HC) Larshin v. Kibler

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANDREY LARSHIN, No. 2:21-cv-0122 JAM KJN P 12 Petitioner, 13 v. ORDER 14 B. KIBLER,1 15 Respondent. 16 17 Petitioner, a state prisoner, proceeds pro se with an application for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. Respondent filed a motion to dismiss this action alleging the 19 petition was successive, untimely, included an unexhausted claim, and failed to raise a cognizable 20 federal claim. On September 9, 2021, respondent withdrew the argument that the instant petition 21 was successive.2 22 On April 11, 2019, petitioner filed a petition for writ of habeas corpus in the California 23 Supreme Court. (ECF No. 16-18 (Lodged Document (“LD”) 15).) The petition was pending at 24 1 Brian Kibler, current warden of High Desert State Prison where petitioner is currently housed, 25 is substituted as respondent in this action. Fed. R. Civ. P. 25(d).

26 2 The parties agree that petitioner received a new judgment that corrected his award of 27 presentence custody credits to include five more days. (ECF No. 18 at 2; see also ECF No. 21 at 1, citing see Gonzalez v. Sherman, 873 F.3d 763, 769 (9th Cir. 2017) (in California, the 28 recalculation of credits awarded to a criminal defendant constitutes a new judgment).) 1 || the time respondent filed the motion to dismiss. (ECF No. 16-19 (LD 16).) Pursuant to the state 2 || court’s website, the California Supreme Court denied the petition on June 30, 2021.7 3 On October 12, 2021, petitioner was informed of his options for seeking stays if he 4 || intended to pursue his state court remedies for any unexhausted claim, and granted thirty days to 5 || file a motion to amend, along with his second amended petition. Petitioner did not file a motion 6 || for stay, but rather filed a motion to amend and a second amended petition. 7 Good cause appearing, petitioner’s motion to amend is granted. Because respondent’s 8 || motion to dismiss was directed to the original petition, and petitioner has now filed a second 9 || amended petition, the motion to dismiss is dismissed without prejudice to renewal. If respondent 10 || renews the argument that this action is barred by the statute of limitations, respondent shall 11 || address whether the new state court judgment re-started the limitations clock. See Gonzalez, 873 12 || F.3d 763; Shropshire v. Baca, 702 F. App’x 629, 630 (9th Cir. 2017). Respondent shall also 13 || provide a copy of any new judgment granting pre-sentence custody credits. 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. Brian Kibler, current warden of High Desert State Prison, is substituted as respondent 16 | in this action; 17 2. Petitioner’s motion to amend (ECF No. 24) is granted; 18 3. Respondent’s motion to dismiss (ECF No. 15) is denied without prejudice; and 19 4. Respondent is granted 45 days in which to renew the motion to dismiss. 20 | Dated: December 6, 2021 21 AO 22 KENDALL J. NE ars0122.1en UNITED STATES MAGISTRATE JUDGE 23 24 |—§_ > The court may take judicial notice of facts that are “not subject to reasonable dispute 25 || because it... can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned,” Fed. R. Evid. 201(b), including undisputed information posted on 26 || official websites. Daniels-Hall v. National Education Association, 629 F.3d 992, 999 (9th Cir. 2010). It is appropriate to take judicial notice of the docket sheet of a California court. White v. 27 | Martel, 601 F.3d 882, 885 (9th Cir. 2010). The address of the official website of the California state courts is Www.courts.ca.gov. 28