Mar-Nique Simon v. Rob Bonta, Attorney General of California

• Court: District Court, N.D. California
• Decided: November 18, 2025
• Docket: 3:09-cv-05859
• Status: Unknown

Opinion

1 ROB BONTA Attorney General of California 2 GREGORY A. OTT Deputy Attorney General 3 MICHELE J. SWANSON Supervising Deputy Attorney General 4 State Bar No. 191193 455 Golden Gate Avenue, Suite 11000 5 San Francisco, CA 94102-7004 Telephone: (415) 510-3866 6 Fax: (415) 703-1234 E-mail: Michele.Swanson@doj.ca.gov 7 Attorneys for Respondent

8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION 11 12 13 MAR-NIQUE SIMON, C 09-05859 WHA (PR) 14 Petitioner, JOINT STATEMENT, STIPULATION, AND [PROPOSED] ORDER 15 v. REGARDING THIS COURT’S CONTINUING JURISDICTION OVER 16 FEDERAL HABEAS PETITION AND DOMINGO URIBE,1 Warden, RETRACTION OF MOTION TO 17 WITHDRAW AS COUNSEL Respondent. 18

19 20 On November 13, 2025, this Court held a hearing with counsel for both parties concerning 21 a motion to withdraw as counsel filed by petitioner’s counsel, Mr. Tamor. Later that day, the 22 Court issued an order setting forth certain triggering dates and tasks for counsel depending on Mr. 23 Tamor’s decision as to whether it would be proper for him to remain as counsel for petitioner. 24 Dkt. No. 217. The parties have met and conferred, and Mr. Tamor has indicated that he decided it 25 would be proper for him to remain as counsel for petitioner. The parties therefore agree and 26 stipulate to the following:

27 1 Petitioner is currently incarcerated at California State Prison, Sacramento, and is in the custody of Warden Jason Schultz. We therefore request that Warden Schultz be substituted for 28 Warden Uribe as the respondent in this case. 1 1. On December 11, 2003, petitioner pleaded no contest to charges of attempted murder 2 and second degree robbery, and admitted firearm and great bodily injury enhancements, 3 in Alameda County Superior Court case number 145604. On March 1, 2004, the trial 4 court sentenced petitioner to twenty years in state prison. 5 2. On December 15, 2009, petitioner filed a petition for writ of habeas corpus in this 6 action challenging his state judgment in case number 145604. At the time petitioner 7 filed his federal petition, he was in state prison serving his twenty-year sentence on the 8 underlying state judgment he was challenging. He therefore met the “in custody” 9 requirement for filing a federal habeas petition challenging his underlying state 10 judgment. Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (per curiam); Garding v. 11 Montana Dep’t of Corr., 105 F.4th 1247, 1256 (9th Cir. 2024). 12 3. On December 22, 2019, petitioner was released from prison and placed on parole. On 13 December 21, 2022, petitioner was discharged from parole, and is no longer in custody 14 on the underlying judgment being challenged in this federal habeas action. However, 15 because petitioner filed his federal petition while he was in custody on the underlying 16 judgment being challenged, his release from custody during the pendency of his federal 17 proceeding does not deprive this Court of jurisdiction over the petition, because of the 18 presumed “continuing collateral consequences” of the underlying state judgment. 19 Spencer v. Kemna, 523 U.S. 1, 7-8 (1998). 20 4. In light of the above stipulated facts and legal authorities, Mr. Tamor has decided that 21 his motion to withdraw as counsel is moot, and he hereby retracts the motion to 22 withdraw (Dkt. No. 211). 23 //// 24 //// 25 //// 26 //// 27 //// 28 //// 1 IT IS SO AGREED AND STIPULATED. 2 Dated: November 17, 2025 Respectfully submitted, 3 ROB BONTA Attorney General of California 4 GREGORY A. OTT Deputy Attorney General 5 6 /s/ Michele J. Swanson 7 MICHELE J. SWANSON Supervising Deputy Attorney General 8 Attorneys for Respondent 9 10 Dated: November 17, 2025 Respectfully submitted, 11 12 /s/ Richard Tamor RICHARD TAMOR 13 Attorney at Law Attorney for Petitioner 14 15 16 [PROPOSED] ORDER 17 FOR GOOD CAUSE SHOWN, IT IS ORDERED THAT: 18 The Court accepts the above joint statement and stipulation of the parties, and finds that 19 the Court retains jurisdiction over this federal habeas proceeding for the reasons set forth by the 20 parties. The parties should continue to follow the relevant schedule set forth by the Court in its 21 order dated November 13, 2025 (Dkt. No. 217). Specifically, the parties should proceed to follow 22 paragraphs 3, 4(a), 5(a), 6 of that order. 23 24 25 DATED: _N_o_v_e_m__b_e_r_ 1_8 , 2025 ________________________________________ The Honorable William H. Alsup 26 United States District Judge 27 28