ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

ORDER

Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

Plaintiff has notified the court that on January 11, 2021, in In re Haynie, No. 20HC00751, the Sacramento County Superior Court determined that petitioner had made a prima facie case for relief on grounds that he was unlawfully sentenced. Plaintiff alleged and provided documentary support for his allegation that the sentencing court had never held a trial on petitioner's California Penal Code § 667(a) strike priors and never formally found them to be true. See ECF No. 33 at 7. The state court also opined that such an unlawful sentence appeared to be an exception to state procedural bars otherwise applicable to successive and/or untimely claims. See id. The state court has issued an order to show cause, requiring respondent to answer, and appears to have appointed counsel for petitioner.

The pending superior court proceeding involves the same substantive issue presented in the federal habeas petition. Accordingly, the ongoing state proceeding has the potential to moot the instant proceeding. Accordingly, counsel for respondent in this case will be ordered to file status reports every ninety days from the date of this order which update the court on the status of the proceedings in In re Haynie. In addition, counsel for respondent will be ordered to file a copy of the Sacramento County Superior Court's final order once it has been issued.

Accordingly, IT IS HEREBY ORDERED that:

1. The Clerk of Court is directed to substitute Brian Cates as the respondent in this matter in lieu of M. Spearman;

2. Within ninety days of the date of this order, counsel for respondent shall file a status report on the proceedings in In re Haynie, No. 20HC00751 (Ca. Super. Ct. 2020) and shall continue to do so every ninety days thereafter until there is a final resolution of the matter; and

3. Once the Sacramento County Superior Court has issued a dispositive order in In re Haynie, counsel for respondent shall notify the court and file a copy of that order in this case. DATED: February 22, 2021

/s/_________

ALLISON CLAIRE

UNITED STATES MAGISTRATE JUDGE