Carranza v. Yates

Filing 18

ORDER by Judge Marilyn Hall Patel denying 17 Motion to Amend/Correct without prejudice; Petitioner must file and serve on respondent's counsel his motion to amend and motion for a stay no later than March 6, 2009; Respondent must file and serve any opposition no later than March 27, 2009; Petitioner must file and serve any reply brief in support of his motions no later than April 17, 2009. (Attachments: # 1 CertServ) (awb, COURT-STAFF) (Filed on 1/26/2009)

1 2 3 4 5 6 7 8 9 10 11 12 United States District Court For the Northern District of California 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

ISMAEL TOVAR CARRANZA, Petitioner, v. JAMES A. YATES, warden, Respondent. /

No. C 07-1114 MHP (pr) ORDER RE. MOTION TO AMEND

The petition for writ of habeas corpus in this action asserted a single claim, i.e., that petitioner's constitutional right to a speedy trial had been violated. After the petition was fully briefed, petitioner filed a request to amend his petition. The request indicates that petitioner wants to assert additional claims for relief, although he does not identify the federal constitutional basis for any of those new claims and apparently has not exhausted state court remedies for those claims. The request to amend is DENIED without prejudice to petitioner filing a new motion to amend and motion to stay this action that provide the information described in the following paragraph. (Docket # 17.) If petitioner has new claims he wants to present in federal court, he must file two motions to accomplish that. First, he must file a motion to amend his petition to add the new federal constitutional claims he wants to present. In his motion to amend, he must describe each new claim by identifying the specific federal constitutional provision violated and describing the facts that support that claim. Second, he must file a motion to stay this action so that he can return to state court to exhaust state court remedies by presenting his claims to the California Supreme Court. Any motion for a stay must comply with the requirements set out in Rhines v. Weber, 544 U.S. 269 (2005): the motion for a stay must explain why

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

petitioner has not yet exhausted those unexhausted claims, explain that his unexhausted claims are not meritless, and explain that he is not intentionally delaying resolution of his constitutional claims. He should explain why each of the claims was not included on direct appeal and why he waited about 20 months after filing his federal petition to assert the new claims. Petitioner must file and serve on respondent's counsel his motion to amend and motion for a stay no later than March 6, 2009. Respondent must file and serve any opposition no later than March 27, 2009. Petitioner must file and serve any reply brief in support of his motions no later than April 17, 2009. IT IS SO ORDERED. DATED: January 23, 2009 Marilyn Hall Patel United States District Judge

2