Opinion
No. 2:09-cv-2429 EFB
04-03-2013
DONALD WILLIAM TARNAWA, Petitioner, v. RUSSELL PURDUE, Warden, Respondent.
BENJAMIN B. WAGNER United States Attorney SAMANTHA S. SPANGLER Assistant U.S. Attorney Attorney for Respondent RICHARD IVES, Warden JOSEPH SCHLESINGER Acting Federal Defender DAVID M. PORTER Assistant Federal Defender Attorney for Petitioner DONALD WILLIAM TARNAWA
JOSEPH SCHLESINGER, #87692
Acting Federal Defender
DAVID M. PORTER, Bar #127024
Assistant Federal Defender
Counsel Designated for Service
801 I Street, 3rd Floor
Sacramento, California 95814
Telephone: (916) 498-5700
Attorney for Petitioner
DONALD WILLIAM TARNAWA
STIPULATED REQUEST TO ENTER
JUDGMENT IN PETITIONER'S FAVOR
FOLLOWING NINTH CIRCUIT REMAND;
and [lodged] ORDER
Petitioner, DONALD WILLIAM TARNAWA, by and through his counsel, Assistant Federal Defender David M. Porter, and Respondent, RUSSELL PURDUE, Warden, by and through his counsel, Assistant United States Attorney Samantha S. Spangler, hereby stipulate that WHEREAS:
Mr. Tarnawa is now confined at the Federal Correctional Institution at Gilmer, where Russell Purdue is the warden, and he is automatically substituted as a party pursuant to Rule 25(d), Federal Rules of Civil Procedure.
(1) on August 28, 2009, Mr. Tarnawa filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 alleging that the Warden acted in excess of his legal authority and the Mandatory Victims Restitution Act of 1996 by fixing a restitution payment schedule in the absence of a schedule setRespectfully submitted, BENJAMIN B. WAGNER
by the sentencing court;
(2) on March 18, 2011, the district court issued an order that, without addressing the merits, dismissed the petition for failing to exhaust remedies, relying in part on Ward v. Chavez, 2009 U.S. Dist. LEXIS 76744 (D. Ariz. Aug. 27, 2009);
(3) following the entry of judgment and an unsuccessful motion for reconsideration, Mr. Tarnawa filed a pro se notice of appeal on November 1, 2011;
(4) the Ninth Circuit Court of Appeals appointed counsel to represent Mr. Tarnawa, and he filed a motion for summary reversal, noting that the decision relied on by this Court was subsequently reversed by the Ninth Circuit Court of Appeals in Ward v. Chavez, 678 F.3d 1042 (2012);
(5) on February 26, 2013, the Ninth Circuit Court of Appeals issued an order vacating the judgment of this Court and remanding the case for further proceedings; accordingly, (6) THEREFORE, the parties stipulate and recommend this Court file the order below entering judgment in Mr. Tarnawa's favor in the above-entitled matter.
United States Attorney
______________
SAMANTHA S. SPANGLER
Assistant U.S. Attorney
Attorney for Respondent
RICHARD IVES, Warden
JOSEPH SCHLESINGER
Acting Federal Defender
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DAVID M. PORTER
Assistant Federal Defender
Attorney for Petitioner
DONALD WILLIAM TARNAWA
ORDER
Pursuant to the February 26, 2013 order of the U.S. Court of Appeals for the Ninth Circuit in the above-entitled matter, the court orders that:
1. The petition for writ of habeas corpus is GRANTED.
2. The Warden is ordered to exempt Mr. Tarnawa from the Inmate Financial Responsibility Program unless the sentencing court specifies the restitution schedule.
3. The Clerk is directed to re-enter judgment and close the case.
IT IS SO ORDERED.
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EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE