Schoppe-Rico v. Horel

Filing 33


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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 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JOHN SCHOPPE-RICO, Petitioner, vs. ROBERT A. HOREL, Warden, Respondent. ) ) ) ) ) ) ) ) ) ) ) No. C 07-5416 JSW (PR) ORDER DENYING MOTIONS TO AMEND AND GRANTING EXTENSION OF TIME (Docket Nos. 25, 26, 28, 29, 30) Petitioner, a prisoner of the State of California, filed a habeas corpus petition under 28 U.S.C. 2254 challenging the constitutional validity of his state conviction that raised thirteen claims for relief. After reviewing the petition, the Court dismissed two claims, dismissed five other claims with leave to amend, and found the remaining six claims to be cognizable. Petitioner then filed an amended petition. After reviewing Petitioner's first amended petition, this Court ordered Respondent to show cause as to why eleven claims in the amended petition should not be granted and dismissed two claims that were found not cognizable on federal habeas review. Petitioner later filed a second amended petition and a request for a stay to "exhaust" previously dismissed claims four and eight in state court, claims which the Court had dismissed for failure to state a claim for federal habeas relief, as well as to "further exhaust" other claims. The motion to exhaust was denied as unnecessary because Petitioner's intended unexhausted additional claims did not present a claim for relief and Petitioner did not establish a need to return to the state courts for his intended purpose of 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 "further"exhausting certain claims to add omitted facts and certain arguments, which he identified as "cleaning up" the petitions. Since the Court's order September 21, 2009 order denying the motion to amend, Petitioner has filed two additional motion seeking leave to file a second or successive habeas petition (docket no. 26) and a motion seeking to amend the petition (docket no. 29). Petitioner has not attached his proposed amended petition to either of these motions. Although the motions are largely incomprehensible, it appears that Petitioner is making further arguments in support of his earlier motion to amend the first amended petition, the operative pleading in this case. However, the Court finds that further exhaustion of the claims raised, and the resulting delay in resolution of this case, is not appropriate, where Petitioner has not established the need to return to the state courts. Therefore, Petitioner's motions to amend the first amended petition are DENIED (docket nos. 26, 29) for the reasons set forth in this Court's earlier order denying Petitioner's motion to amend (docket no. 24). Petitioner's motions seeking an extension of time to file a traverse are GRANTED (docket nos. 25, 27) and Petitioner's traverse is deemed timely filed. Petitioner's motion seeking leave to file an oversize brief is GRANTED (docket no. 30). The instant matter is now submitted for a determination on the merits. IT IS SO ORDERED. DATED: May 3, 2010 JEFFREY S. WHITE United States District Judge 2 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 v. ROBERT A. HOREL et al, Defendant. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JOHN M. SCHOPPE-RICO, Plaintiff, Case Number: CV07-05416 JSW CERTIFICATE OF SERVICE / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on May 3, 2010, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. John M. Schoppe-Rico V-11328 Pelican Bay State Prison P.O. Box 7500 Crescent City, CA 95532 Dated: May 3, 2010 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk

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