Coleman v. McGrath

Filing 21

ORDER DENYING RESPONDENT'S MOTION TO DISMISS AND PETITIONER'S MOTION FOR LEAVE TO AMEND by Judge Phyllis J. Hamilton denying 17 Motion to Dismiss; denying 20 Motion to Amend/Correct (Attachments: # 1 Certificate of Service) (nah, COURT STAFF) (Filed on 3/16/2009)

1 2 3 4 5 6 7 8 9 10 vs. JOE McGRATH, Warden, Respondent. / RAHSAAN COLEMAN, Petitioner, No. C 04-4069 PJH (PR) ORDER DENYING RESPONDENT'S MOTION TO DISMISS AND PETITIONER'S MOTION FOR LEAVE TO AMEND UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

United United States District Court

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For the Northern District of California

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This is a habeas case filed pro se by a state prisoner. The court granted respondent's motion to dismiss the petition as mixed and dismissed with leave for petitioner to chose from three possible courses of action. He chose to ask for a stay to allow him to return to state court to exhaust the unexhausted issues, which was granted. Upon being informed that petitioner had exhausted, the case was reopened and a new order to show cause was issued. Respondent has answered the order to show cause with another motion to dismiss as mixed, saying that petitioner impliedly amended his petition in the motion to reopen by his references to Cunningham v. California, 127 S. Ct. 856, 871 (2007), and that the Cunningham claim was not exhausted. The court had not referred to the Cunningham claims in its order to reopen or given leave to amend. In response, petitioner says that he did not intend to amend his petition by the references to Cunningham. In view of this, the motion to dismiss as mixed (document number 17 on the docket) is DENIED. Petitioner did, however, file a motion for leave to amend subsequent to the respondent's motion to dismiss. The motion is almost impenetrable. After much needless discussion of law, petitioner says that the issues he wishes to add are to be found in

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"Exhibit C." Attached to the motion to amend are two appendices; one is a "postcard denial" of a state habeas petition, case number S161111. The second is labeled "Appendix 2[;] Petition for Writ of Habeas Corpus - # S161111." Following that cover page, however, is a handwritten habeas petition, not on a form, carrying the caption of this case, not the state case. This "petition" again refers to "Exhibit C," presumably the same exhibit C as is referred to in the motion to amend, as setting out petitioner's issues. It nevertheless contains thirty-three pages of argument about the application of the Apprendi, Blakely, Cunningham line of cases to petitioner's sentencing. It does not include petitioner's prior issues in this case. Exhibit C is petitioner's state habeas petition in case number S161111. The first ground for relief there is "[p]etitoner was deprived [of] his Sixth Amendment rights to effective assistance of counsel; and petitioner's priors are constitutionally invalid. (Please refer to attach[ed] pro se habeas corpus petition at pp. (3)) and (69) et. seq.) [capitalization corrected]." His second issue is a Cunningham claim. Attached to the state form is a lengthy hand-written petition. The reproduction is so poor that some of it is illegible, and the page numbers have all been cut off in copying, so it is not possible to use this attachment to flesh out issue one, which otherwise is too conclusory to state a claim for relief. That is, from the statement of issue one in the form part of the state petition alone it is not possible to determine what petitioner contends counsel did that was ineffective, nor is it possible to determine why he thinks his prior convictions were constitutionally invalid. Petitioner's attempt to amend is unmanageable. Not only is it difficult to tell what issues he intends to raise, if the amended petition were allowed it would have the effect of eliminating all his previous issues, because an amended petition completely replaces the original one. The motion for leave to amend (document number 20) is DENIED. Because it appears that petitioner wishes to amend to add at least a Cunningham issue, and perhaps others, further action on the petition will be withheld for thirty days to allow him to file a new motion for leave to amend. If he does so, he should bear in mind that he must provide the proposed amended petition with the motion for leave. The 2

United States District Court

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For the Northern District of California

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proposed petition must be on the court's form for section 2254 petitions and must carry the caption for this case, the case number, and the words "proposed amended petition." It must include all the issues petitioner wishes to present; any not included will be deemed abandoned. The petition may not incorporate other documents by reference. If petitioner wishes to present argument, he may do so in a separate memorandum, but the petition itself must contain a succinct list of issues and the facts underlying each. If a motion for leave to amend is filed the opposition is due within fourteen days of service of the motion on respondent, and if petitioner wishes to file a reply he shall do so within seven days of service of the opposition. After expiration of time to file a reply, the court will review any motion to amend that has been filed and will enter a scheduling order. IT IS SO ORDERED. Dated: March 16, 2009. PHYLLIS J. HAMILTON United States District Judge

United States District Court

11
For the Northern District of California

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