(HC) Lund v. Locatelli

Opinion

1 Law Office of Susannah M. Lund 702 Mangrove Ave #320 2 Chico, CA 95926

3 Telephone: (530) 864-2869 susannah@mailfence.com

4 Attorney for Petitioner ERIC CURTIS LUND 5

7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ERIC CURTIS LUND, Case No. 2:21-cv-01831-KJM-DB 11 Petitioner, JOINT STIPULATION FOR PETITIONER 12 TO FILE A SECOND AMENDED v. PETITION FOR WRIT OF HABEAS 1 13 4

I ZEN LOCATELLI, et al. C ORPUS 15 Judge: Hon. Kimberly J. Mueller 16 Respondent. Magistrate: Hon. Deborah Barnes 17 Action Filed: October 4, 2021 18 By and through their counsel of record, Petitioner ERIC CURTIS LUND (“Petitioner”) and 19 Respondents IZEN LOCATELLI and ROB BONTA (collectively, “Respondents”) have met and 20 conferred and have come to the following stipulations: 21 WHEREAS, on October 4, 2021, Petitioner filed a Petition for Writ of Habeas Corpus in 22 the above-entitled matter (ECF 1); 23 WHEREAS, On October 10, 2021, Petitioner moved for a stay of this federal matter under 24 Rhines v. Weber, 544 U.S. 269 (2005), so that he could return to the state courts to exhaust the 25 otherwise unexhausted claims contained within his mixed petition (ECF 3); 26 WHEREAS, on November 4, 2021, pursuant to Federal Rule of Civil Procedure 15(a)(1), 27 Petitioner filed a First Amended Petition for Writ of Habeas Corpus (ECF 7); 28 1 WHEREAS, on November 16, 2021, time expired for Petitioner to file a writ of certiorari

2 in the United States Supreme Court challenging the California Supreme Court’s August 18, 2021

3 denial of review of the First District Court of Appeal’s denial of Petitioner’s direct appeal;

4 WHEREAS, on August 16, 2022, the Honorable Magistrate Judge Deborah B arnes issued

5 a Findings and Recommendation for the Court’s consideration, recommending that Petitioner’s

6 Motion for Stay be granted under Rhines v. Weber, 544 U.S. 269 (2005) (ECF 22);

7 WHEREAS that recommendation is still under this Court’s consideration;

8 WHEREAS, while Federal Rule of Civil Procedure 15(a)(2) generally permits further

9 amendments to pleadings if certain conditions are met, in the habeas setting that right is also

10 governed by the one-year statute of limitations set out in the Antiterrorism and Effective Death

11 Penalty Act of 1996 (“AEDPA”) (28 U.S.C. § 2244(d)(1)), which begins to run on the date on

12 which Petitioner’s judgment became final with the expiration of the time for seeking review in the

13 United States Supreme Court (id. § 2244(d)(1)(A));

14 WHEREAS, before the running of that one-year AEDPA clock, Petitioner desires to amend

15 his First Amended Petition for Writ of Habeas Corpus by filing a Second Amended Petition for

16 Writ of Habeas Corpus that gives full and fair notice of all factual allegations that support his claims

17 for relief;

18 WHEREAS Petitioner provided Respondents with a review copy of the proposed amended

19 petition on October 27, 2022;

20 IT IS HEREBY STIPULATED by all parties to this action that Petitioner may file his

21 Second Amended Petition for Writ of Habeas Corpus, attached hereto as Exhibit 1, and agreed to

22 by all parties that it will become this action’s operative petition, regardless of the United States

23 District Judge’s ultimate decision on the pending recommendation by the Magistrate to stay this

24 federal action.

25 //

26 //

27 //

28 // 1 IT IS FURTHER STIPULATED by all parties to this action that in agreeing to Petitioner

2 filing this Second Amended Petition, Respondents are not waiving any objections to any claims

3 contained therein, including, but not limited to, the right to assert challenges to the timeliness,

4 procedural bars, or exhaustion of any claim.

6 DATED: November 8, 2022 LAW OFFICE OF SUSANNAH M. LUND 7 /s/ Susannah M. Lund 8 SUSANNAH M. LUND Attorney for Petitioner 9

11 DATED: November 8, 2022 CALIFORNIA DEPARTMENT OF JUSTICE, 12 OFFICE OF ATTORNEY GENERAL

13 By: /s/ Gregory A. Ott GREGORY A. OTT 14 Deputy Attorney General Attorney for Respondents 15

16 ORDER OF THE COURT

18 Having received a joint stipulation pursuant to Federal Rule of Civil Procedure

19 15(a)(2) from all parties to the above-entitled matter agreeing that Petitioner ERIC CURTIS

20 LUND may filed his Second Amended Petition for Writ of Habeas Corpus, and finding good

21 cause thIte irse iHnE; REBY ORDERED that

22 1. Within 7 days of this :O rder, Petitioner is directed to file the proposed Second

23 Amended Petition for Writ of Habeas Corpus that was attached to the parties’ stipulation.

24 DATED: November 14, 2022 25

27 D DB B1 /D4 B Prisoner Inbox/Habeas/R/lund1831.36sap