Allen v. Lewis

Filing 6

ORDER TO FILE EXHIBITS OR AMENDED PETITION; LIFTING STAY; DENYING APPOINTMENT OF COUNSEL; ADMINISTRATIVELY REOPENING CASE. Signed by Judge Jeffrey S. White on 4/26/12. (jjoS, COURT STAFF) (Filed on 4/26/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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TIMOTHY NATHANIEL ALLEN,

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Petitioner,
vs.
G. D. LEWIS, Warden,
Respondent.

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No. C 11-4441 JSW (PR)
ORDER TO FILE EXHIBITS OR
AMENDED PETITION; LIFTING
STAY; DENYING APPOINTMENT OF
COUNSEL; ADMINISTRATIVELY
REOPENING CASE

(Docket No. 5)

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INTRODUCTION
Petitioner, a prisoner of the State of California proceeding pro se, has filed a
habeas corpus petition pursuant to 28 U.S.C. § 2254 challenging the constitutionality of
his state court conviction. The petition was stayed to allow petitioner to exhaust two
claims in state court. Petitioner has filed a motion for appointment of counsel in which he
states that he has now exhausted those two claims and wishes to proceed with the instant
case. For the reasons discussed below, Petitioner is directed to file the exhibits referenced
in his petition or an amended petition, the stay is LIFTED, the case is administratively
reopened, and the motion for appointment of counsel is DENIED.
BACKGROUND
Petitioner was convicted in Alameda County Superior Court of first-degree murder
with special circumstances and he was sentenced to prison for a term of life without

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parole. In 2010, the California Court of Appeal affirmed the judgment on appeal, and the

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California Supreme Court denied a petition for review. Thereafter, petitioner filed a

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habeas petition in the California Supreme Court, which was pending when he filed the

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instant federal petition on September 7, 2011. The California Supreme Court denied the

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habeas petition in January 2012.1

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DISCUSSION
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Standard of Review
This court may entertain a petition for a writ of habeas corpus “in behalf of a

person in custody pursuant to the judgment of a State court only on the ground that he is

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in custody in violation of the Constitution or laws or treaties of the United States.” 28

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U.S.C. § 2254(a). It shall “award the writ or issue an order directing the respondent to

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show cause why the writ should not be granted, unless it appears from the application that

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the applicant or person detained is not entitled thereto.” Id. § 2243.

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II

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Legal Claims
Petitioner makes seven claims on his form petition by reference to purportedly

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attached exhibits. No exhibits were attached to his petition, however, so the Court cannot

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discern what all of his claims are meant to be. For example, a number of his claims are

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for a violation of his right to due process, but he states that his exhibits set forth how his

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right to due process was violated. Without the exhibits, it cannot be determined whether

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or not he states a cognizable claim for relief.

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III.

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Motion for Appointment of Counsel

As Petitioner has presented his claims adequately and they are not particularly

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complex, the interests of justice do not require appointment of counsel at this stage of the

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case. Petitioner’s motion may, however, be renewed at a later stage of the case -- if, for

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Good cause appearing, Petitioner’s failure to seek to reopen the instant case within 30
days of the date the California Supreme Court denied his habeas petition is excused.

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instance, an evidentiary hearing becomes necessary.

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CONCLUSION

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For the foregoing reasons and for good cause shown,

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1. The motion for appointment of counsel (docket number 5) is DENIED.

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2. Within thirty (30) days of the date this order is filed, Petitioner shall file the

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exhibits referenced in his petition or an amended petition that sets forth cognizable

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claims. The exhibits or amended petition must include the caption and civil case number

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used in this order, No. C 11-4441 JSW (PR), and if the files an amended petition, it shall

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include the words “COURT-ORDERED FIRST AMENDED PETITION” on the first

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page. Also, because an amended petition completely replaces the original petition, see

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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992), Petitioner may not incorporate

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into any amended petition material from the original petition by reference. Failure to file

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the exhibits or an amended petition within the designated time and in accordance with

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this order will result in the dismissal of this action without prejudice.

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3. The stay is LIFTED. The Clerk shall administratively reopen the file.

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IT IS SO ORDERED.

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DATED: April 26, 2012
JEFFREY S. WHITE
United States District Judge

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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TIMOTHY NATHANIEL ALLEN,

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Case Number: CV11-04441 JSW

Plaintiff,

CERTIFICATE OF SERVICE

v.
GREG LEWIS et al,
Defendant.

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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 April 26, 2012, 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.

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Timothy Nathaniel Allen G-41162
SVSP
P.O. Box 1050
Soledad, CA 93960

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Dated: April 26, 2012

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Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk