(HC) Paisano v. De La Cruz

• Court: District Court, E.D. California
• Decided: February 10, 2025
• Docket: 2:22-cv-00641
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NORMA PAISANO, No. 2:22-cv-0641 TLN CKD P 12 Petitioner, 13 v. ORDER 14 ANISSA DE LA CRUZ, 15 Respondent. 16 17 Petitioner is a California prisoner proceeding with counsel with a petition for a writ of 18 habeas corpus under 28 U.S.C. § 2254. Respondent’s motion to dismiss claims 4 and 5 in 19 petitioner’s second amended petition is pending before the court. 20 To resolve all issues presented in respondent’s pending motion to dismiss the court 21 requires the record of trial. Accordingly, the court will order respondent to provide the record. 22 Also, it appears there may be a conflict of interest with respect to counsel’s representation 23 of petitioner. It is at least possible that petitioner would be entitled to equitable tolling1 sufficient 24 to render claims 4 and 5 timely based upon counsel’s late filing of a petition for collateral relief at 25 the California Court of Appeal. 26

27 1 The statute of limitations applicable in this action can be equitably tolled if a habeas petitioner demonstrates: 1) the existence of an “extraordinary circumstance” that prevented timely filing; 28 and, 2) diligent pursuit of habeas relief. See Holland v. Florida, 560 U.S. 631, 649 (2010). ] Further, the court is aware counsel for petitioner is currently subject to attorney 2 || disciplinary proceedings before the California State Bar (SBC-24-O0-30844, SBC-24-0-30656). 3 || One of the cases is pending and one has been settled with the terms of settlement not yet having 4 || been made public. 5 Considering these facts, the court elects to hold a status conference during which the 6 || court will directly inform petitioner of the potential conflict of interest with counsel, discern the 7 || status of counsel for petitioner’s disciplinary proceedings, and then discuss with petitioner and 8 | both attorneys of record how this action should proceed. 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. Within 14 days, respondent file or lodge all state court records concerning the 11 || convictions and sentences at issue in this action including reporters’ transcripts and documents 12 | filed with the San Joaquin County Clerk. 13 2. This action is set for status conference on March 7, 2025, at 10:00 a.m. The parties 14 | shall appear by Zoom. The link to the Zoom meeting will be provided shortly before the hearing. 15 || A writ of habeas corpus ad testificandum will issue for petitioner’s presence by Zoom at the 16 | hearing. 17 | Dated: February 10, 2025 / ae □□ / a Ly a 18 CAROLYN K DELANEY 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 | 4 73 pais0641.stat 24 25 26 27 28