(HC) Paisano v. De La Cruz

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA NORMA PAISANO, No. 2:22-cv-0641 TLN CKD P 12 Petitioner, 13 v. ORDER ANISSA DE LA CRUZ, 15 Respondent.

17 Petitioner is a California prisoner proceeding with counsel with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Respondent’s motion to dismiss claims 4 and 5 in 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 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 of petitioner. It is at least possible that petitioner would be entitled to equitable tolling1 sufficient to render claims 4 and 5 timely based upon counsel’s late filing of a petition for collateral relief at the California Court of Appeal.

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; 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 || 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 || been made public.

5 Considering these facts, the court elects to hold a status conference during which the || court will directly inform petitioner of the potential conflict of interest with counsel, discern the || status of counsel for petitioner’s disciplinary proceedings, and then discuss with petitioner and | 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 || convictions and sentences at issue in this action including reporters’ transcripts and documents | 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 | 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 | hearing.

17 | Dated: February 10, 2025 / ae □□ / a Ly a 18 CAROLYN K DELANEY 19 UNITED STATES MAGISTRATE JUDGE | 4 73 pais0641.stat