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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

BENITO JULIAN LUNA,

Petitioner,

v.

SCOTT KERNAN,

Respondent.

No. 2:04-cv-0627 MCE GGH P

ORDER

Petitioner, a state prisoner, 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.

On December 23, 2015, the magistrate judge filed Findings and Recommendations herein 

(ECF No. 72) which were served on both Petitioner and Respondent and which contained notice 

that any objections to the Findings and Recommendations were to be filed within twenty-one 

days. The parties have not filed objections to the Findings and Recommendations.1

The Court has reviewed the file and finds the Findings and Recommendations to be 

supported by the record and by the magistrate judge’s analysis. The Court has also considered

Fue v. Biter, No. 12-55307, ___ F.3d ___, 2016 WL 192000 (9th Cir. Jan. 15, 2016), a case in 

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 On December 30, 2015, Respondent filed a “Non-objection” stating he would not file 

objections to the Findings and Recommendations. ECF No. 73.

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which the California Supreme Court did not notify a habeas petitioner that it had denied his state 

habeas petition until fourteen months after the denial. Fue, however, does not affect the finding 

of diligence in this case for the following reasons. Although both Petitioner and the petitioner in 

Fue did not seek to ascertain the status of their respective cases for fourteen months, Petitioner 

Luna had corresponded with his attorney before and after that fourteen month period, 

correspondence which included over thirty letters in a six-year period, and initiating his 

correspondence immediately on his attorney’s appointment to the case. The petitioner in Fue, on 

the other hand, did not correspond with the California Supreme Court at all until writing and 

mailing a single letter after fourteen months had passed. Petitioner therefore meets the “steady 

stream of correspondence” requirement discussed in Fue, whereas the petitioner in Fue did not

satisfy that standard. Moreover, Petitioner’s attorney affirmatively misrepresented the status of 

his case (that is, that the case was active and proceeding forward), which caused Petitioner to rely 

on this advice to his detriment. No such misrepresentation occurred in Fue. Given that the Ninth 

Circuit in Fue noted cases finding diligence where prisoners waited fewer than ten months before 

inquiring and cases finding lack of diligence where prisoners waited sixteen months or more, this 

case—in which Petitioner wrote no letters for fourteen months but otherwise steadily inquired 

over a six-year period—is an example of why “the availability of equitable relief commends a 

flexible, case-by-case approach.” Fue, 2016 WL 192000, at *2. In this instance, Petitioner 

exercised the requisite diligence.

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendations filed December 23, 2015 (ECF No. 72) are 

ADOPTED IN FULL;

2. The amended petition filed June 3, 2011 (ECF No. 15) is REINSTATED as timely 

filed based on equitable tolling principles, and all previous orders dismissing the petition are 

VACATED;

///

///

///

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3. Respondent is directed to file an answer to the amended petition within sixty (60) days 

from the date this order is electronically filed. See Rule 4, 28 U.S.C. foll. § 2254. An answer 

shall be accompanied by all transcripts and other documents relevant to the issues presented in the 

petition. See Rule 5, 28 U.S.C. foll. § 2254; and 

4. Petitioner’s reply, if any, shall be filed and served within thirty (30) days after service 

of Respondent’s answer.

Dated: February 2, 2016

Case 2:04-cv-00627-MCE-GGH Document 74 Filed 02/04/16 Page 3 of 3