Kayik v. Diaz

Filing 15

ORDER by the Hon. Thelton E. Henderson granting 14 Motion for leave to file amended petition; ORDER TO SHOW CAUSE. Amended petition shall be filed by 03/02/15. Answer due 05/04/15. Traverse due 06/05/15. (tehlc3, COURT STAFF) (Filed on 2/25/2015)

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3
4

ERHAN KAYIK,
Plaintiff,

5
6
7
8

v.
RALPH M. DIAZ,

Case No. 12-cv-05907-TEH
ORDER GRANTING MOTION FOR
LEAVE TO FILE AMENDED
PETITION; ORDER TO SHOW
CAUSE

Defendant.

9
10

On January 8, 2015, this Court set a briefing schedule for Petitioner Erhan Kayik’s

United States District Court
Northern District of California

11

motion for leave to file an amended habeas petition to include newly exhausted claims.

12

Petitioner filed a timely motion on February 9, 2015, contending that the newly exhausted

13

claims relate back to the previously exhausted and timely filed claims, and that leave to

14

amend should therefore be granted.

15

Respondent Ralph M. Diaz was ordered to file an opposition or statement of non-

16

opposition on or before February 23, 2015. The Court construes his failure to file either

17

document as a statement of non-opposition to Petitioner’s contention that the newly

18

exhausted claims relate back to the previously exhausted claims.

19
20
21

Petitioner’s motion for leave to file an amended petition is therefore GRANTED as
unopposed. Petitioner shall file his amended petition on or before March 2, 2015.
In addition, because it does not “appear[] from the application,” see Ex. A to Feb. 9,

22

2015 McCarthy Decl., that Petitioner is not entitled to habeas relief, the Court hereby

23

orders Respondent “to show cause why the writ should not be granted.” 28 U.S.C. § 2243.

24

Accordingly, IT IS FURTHER ORDERED that:

25

1. On or before May 4, 2015, Respondent shall file and serve an answer showing

26

cause why this Court should not issue a writ of habeas corpus. Respondent’s answer shall

27

conform in all respects to Rule 5 of the Rules Governing § 2254 cases. In addition,

28

Respondent shall file and serve with his answer a copy of all portions of the administrative

1

record that have been transcribed previously and that are relevant to a determination of the

2

issues presented by the petition.

3
4

2. If Petitioner wishes to respond to the answer, he shall do so by filing a traverse
with the Court and serving it on Respondent on or before June 5, 2015.

5
6

IT IS SO ORDERED.

7
8
9

Dated: 02/25/15

_____________________________________
THELTON E. HENDERSON
United States District Judge

10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

2