Callegari v. Hickman, et al

Filing 31

FINDINGS and RECOMMENDATIONS signed by Judge Peter A. Nowinski on 11/29/05. The 11/22/04 Stay and the 26 9/2/04 Order Granting Leave to file a first - amended complaint are hereby VACATED. It is recommended that ptnr's 21Motion for leave to Amend be denied and that this matter proceed on ptnr's 18/30/99 Petition.(Brown, T)

(JFM) (HC) Callegari v. Hickman, et al

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Case 2:99-cv-01686-MCE-PAN

Document 31

Filed 11/30/2005

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. Anthony Lamarque, Warden, Respondent. -oOoAugust 30, 1999, petitioner filed a petition for a writ of habeas corpus claiming the trial court's reasonable doubt instruction diluted the state's burden of proof. October 7, April 25, Carl Lee Callegari, Petitioner, No. Civ. S 99-1686 MCE PAN P Findings and Recommendations United States District Court Eastern District of California

1999, a different magistrate judge appointed counsel. 2000, respondent answered the petition.

October 14, 2003, petitioner moved to amend his petition to add a claim his sentence violates the Eighth Amendment. September 2, 2004, I found the new claim time-barred but found that pursuant to Ninth Circuit precedent, the claim related

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Case 2:99-cv-01686-MCE-PAN

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back to the date of the original petition and granted the request. See Felix v. Mayle, 379 F.3d 612 (9th Cir. 2004).

September 7, 2004, respondent requested this action be stayed pending the United States Supreme Court's decision in Mayle v. Felix, 73 USLW 3286 (Oct. 25, 2004)(No. 04-563). October 12, 2004, petitioner filed a first-amended petition. November 22, 2004, the court stayed this action and directed petitioner to notify the court when the Supreme Court resolved Mayle v. Felix. September 20, 2005, petitioner notified this court that the Supreme Court decided Felix. In Felix, the Supreme Court held that an amended habeas petition does not relate back to the original when it "asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth." Felix, 125 S.Ct. at 2566. In this case, the core facts of the initial petition relate to how the judge instructed the jury on the state's burden of proof. The core facts of the new claim relate to the length of The claims have no factual allegations in

petitioner's sentence.

common and so are not "tied to a common core of operative facts." Felix, 125 S.Ct. at 2574. Therefore, petitioner's Eighth

Amendment challenge to his sentence does not relate back to the date of the original petition. For these reasons, I hereby vacate the November 22, 2004, stay, vacate the September 2, 2004, order granting leave to file
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a first-amended complaint and recommend that petitioner's October 14, 2003, motion be denied and that this matter proceed on petitioner's August 30, 1999, petition. Pursuant to the provisions of 28 U.S.C. § 636(b)(l), these findings and recommendations are submitted to the United States District Judge assigned to this case. Written objections may be

filed within 20 days of service of these findings and recommendations. The document should be captioned "Objections to The district

Magistrate Judge's Findings and Recommendations."

judge may accept, reject, or modify these findings and recommendations in whole or in part. Dated: November 29, 2005. /s/ Peter A. Nowinski PETER A. NOWINSKI Magistrate Judge

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