Valdez v. Virga

Filing 41

ORDER Directing Respondent To Respond To Motion To Amend Petition For Writ Of Habeas Corpus (Doc. 39 ), signed by Magistrate Judge Michael J. Seng on 6/11/2015. (Responses due by 6/30/2015)(Fahrney, E)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:12-cv-01784 AWI MJS (HC)
RUBEN VALDEZ,

ORDER DIRECTING RESPONDENT TO
Petitioner, RESPOND TO MOTION TO AMEND
PETITION FOR WRIT OF HABEAS
CORPUS

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v.

(Doc. 39)
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CONNIE GIPSON, Warden,
Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.

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On November 1, 2012, Petitioner filed a petition for writ of habeas corpus. (Pet.,

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ECF No. 1.) On January, 2013, Petitioner filed a motion to amend along with a first

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amended petition for writ of habeas corpus. (ECF Nos. 19, 30.) The Court granted the

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motion to amend, and Respondent filed an answer to the petition on March 5, 2013.

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(Answer, ECF No. 24.) On February 10, 2015, the Court issued findings and a

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recommendation to deny the first amended petition. (ECF No. 38.)

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A week later on February 17, 2015, the Court received a motion to amend the

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petition for writ of habeas corpus, along with a copy of a second amended petition. The

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motion was dated on February 2, 2015, prior to the issuance of the findings and
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recommendation to deny the first amended petition.

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In the second amended petition, Petitioner includes two new claims, claims 9 and

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10. In claim 9, Petitioner contends that the trial court violated his due process rights by

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allowing the prosecution to present false testimony at trial. In claim 10, Petitioner claims

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that his right to a fair trial was violated due the presentation of an excessive amount of

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testimony regarding Petitioner's past criminal and gang related conduct.

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The second amended petition was filed over three years after Petitioner filed the

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original petition with this court. Without the benefit of relation back, it appears that the

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newly filed claims contained in the second amended petition are untimely.1

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Accordingly, IT IS HEREBY ORDERED that:

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Respondent is required to file an opposition to the motion to amend, and

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specifically address whether based on relation back under Fed. Rule Civ. P. 15(c), the

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claims should be considered timely filed. The opposition is due within twenty-one (21)

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days of the date of issuance of this order. Petitioner may file a reply to the opposition

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within fourteen (14) days of date of service of Respondent's opposition.

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IT IS SO ORDERED.
Dated:

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June 11, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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The court also notes that claim 10 appears to be similar, if not identical, to claim 1 of the first
amended petition. To the extent that the claim has already been addressed on the merits by the Court, the
court requests Respondent confirm that no further issues remain with regard to the claim.

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