Dorton v. Dickinson

Filing 59

ORDER GRANTING IN PART AND DENYING IN PART PETITIONER'S APPLICATION FOR LEAVE TO FILE AMENDED PETITION AND FOR EXTENSION OF TIME TO FILE TRAVERSE AND REPLY MEMORANDUM. To the extent the Application seeks an order allowing Dorton to file an amend ed petition to add a new claim or claims, the Application is denied without prejudice to Dorton's filing a motion to amend pursuant to Rule 15(a). To the extent the Application seeks an extension of time to file a traverse and reply memorandum, the Application is granted; the deadline for Dorton to file a traverse and reply memorandum is extended to May 7, 2010.Signed by Judge Maxine M. Chesney on April 5, 2010. (mmclc1, COURT STAFF) (Filed on 4/5/2010)

1 2 3 4 5 6 7 8 9 10 For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In the absence of Dorton's submission of a proposed FAP, the Court is unable to determine whether any new claim or claims would be cognizable. See, e.g., 28 U.S.C. § 2254(b) (providing application for writ of habeas corpus "shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State").
1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

JASON DORTON, Petitioner, v. KATHLEEN DICKINSON, Respondent /

No. C-98-2003 MMC ORDER GRANTING IN PART AND DENYING IN PART PETITIONER'S APPLICATION FOR LEAVE TO FILE AMENDED PETITION AND FOR EXTENSION OF TIME TO FILE TRAVERSE AND REPLY MEMORANDUM

United States District Court

Before the Court is petitioner Jason Dorton's ("Dorton") "Application for Leave to File Amended Petition and for Extension of Time to File Traverse and Reply Memorandum" ("Application"), filed March 26, 2010. Respondent has not filed a response. Having read and considered the Application, the Court rules as follows: 1. To the extent the Application seeks an order allowing Dorton to file an amended petition to add a new claim or claims, the Application is hereby DENIED without prejudice to Dorton's filing a motion to amend pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, and attaching thereto a proposed First Amended Petition ("FAP"). See Mayle v. Felix, 545 U.S. 644, 655 (holding Rule 15(a) is "applicable to habeas proceedings"); see Civil L.R. 10-1(providing party seeking leave to file amended pleading must submit "proposed pleading").1

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 27 28

2. To the extent the Application seeks an extension of time to file a traverse and reply memorandum, the Application is hereby GRANTED. Specifically, the deadline for Dorton to file a traverse and reply memorandum is hereby EXTENDED to May 7, 2010.2 IT IS SO ORDERED.

Dated: April 5, 2010

MAXINE M. CHESNEY United States District Judge

If, prior to May 7, 2010, petitioner files a motion to amend, the May 7, 2010 deadline to file a traverse and reply memorandum will be vacated without further order of the court, and will be reset, as necessary, following resolution of the motion to amend. 2

2