Winn v. California Department of Corrections

Filing 18

ORDER signed by Magistrate Judge John F. Moulds on 2/4/09 ORDERING that Respondent shall file an amended answer to the September 15, 2008 amendedpetition within thirty days from the date of this order and Petitioner is granted thirty days from the date the amended answer is filed inwhich to file a reply. (Becknal, R)

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 Ground one: "washed out prison prior used after 5 years agreement." Ground three: "dismissed prior allegations." Id. 1
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA JOHN LAMONT WINN, Petitioner, vs. CALIFORNIA DEPARTMENT OF CORRECTIONS, Respondent. / Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2007 conviction on charges of possession and transportation of methamphetamine. CT 76-77, 138. In the November 3, 2008 answer, respondent stated: On September 15, 2008, petitioner filed the instant amended petition pursuant to this Court's August 29, 2008 order. Petition, at 1. On May 1, 2008, petitioner filed the instant petition. Order To Show Cause. Answer, at 1. Respondent claims petitioner concedes he failed to exhaust state court remedies with regard to petitioner's claims one and three, citing those grounds from the original petition.1 ORDER No. 2:08-cv-1865 JAM JFM (HC)

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(Answer, citing Petition, at 4.) However, a review of petitioner's amended petition reflects that petitioner raised three claims in his amended petition and alleges that all three of those claims were raised in the California Supreme Court.2 (Amended Petition at 4.) It appears respondent may have filed his answer to the original petition rather than the amended petition. Accordingly, respondent will be granted leave to file an amended answer that is directed to the allegations contained within the amended petition filed September 15, 2008. Petitioner will be provided another opportunity to file a reply. Good cause appearing, IT IS HEREBY ORDERED that: 1. Respondent shall file an amended answer to the September 15, 2008 amended petition within thirty days from the date of this order; and 2. Petitioner is granted thirty days from the date the amended answer is filed in which to file a reply. DATED: February 4, 2009.

001; winn1865.amd

Ground one: "Is possession of a controlled substance a lesser included offense of transportation of marijuana `where defendant's possession is incidental to, and a necessary part of, the transportation charged, and no prior, different or subsequent possession is shown. . .' remains viable in light of subsequent case law questioning that holding." Ground three: "Whether the trial court erroneously refused to submit to the jury the question of whether appellate possessed the methamphetamine[] for personal use in violation of appellant's right to due process of law and Sixth and Fourteenth Amendments right to a jury trial." Id. 2

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