Bunn v. Hedgpeth

Filing 24

ORDER EXTENDING DEADLINE. Signed by Judge Phyllis J. Hamilton on 11/15/12. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 11/15/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BILL BUNN,

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No. C 09-0251 PJH (PR)

Petitioner,

ORDER EXTENDING
DEADLINE

vs.
WARDEN SALINAS VALLEY STATE
PRISON,

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Respondent.
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Petitioner, a California prisoner currently incarcerated at Corcoran Prison, has filed a

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For the Northern District of California

United States District Court

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pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The original

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petition was dismissed with leave to amend and petitioner was ordered to file a second

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amended petition. Petitioner has not filed a second amended petition, instead filing a brief

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memorandum that appears to reference a prior petition (document number 19 on the

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docket), even though that petition was denied. Petitioner is informed that the amended

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petition completely replaces the original petition, so petitioner must include in it all the

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claims he wishes to present, and he may not incorporate any other document by reference.

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Within twenty-eight days petitioner must file a second amended petition. Failure to file a

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second amended petition will result in this case being dismissed.

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Petitioner is again reminded that he can only bring claims where he has first

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exhausted state judicial remedies, either by way of a direct appeal or in collateral

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proceedings, by presenting the highest state court available with a fair opportunity to rule

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on the merits of each and every issue he or she seeks to raise in federal court. See 28

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U.S.C. § 2254(b),(c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). Petitioner has the

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burden of pleading exhaustion in his habeas petition. See Cartwright v. Cupp, 650 F.2d

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1103, 1104 (9th Cir. 1981).

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In amending, petitioner should bear in mind several additional points. For one thing,
federal habeas relief can be granted only for violations of federal law, usually the

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Constitution, not for violations of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68

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(1991) (federal habeas unavailable for violations of state law or for alleged error in the

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interpretation or application of state law).

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If petitioner brings another petition with exhausted and unexhausted claims, he

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would be bringing a mixed petition. Mixed petitions are subject to dismissal, although

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petitioner would be offered the opportunity to delete unexhausted issues or ask for a stay to

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allow him to exhaust them. See Rose v. Lundy, 455 U.S. 509, 522 (1982); Guizar v.

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Estelle, 843 F.2d 371, 372 (9th Cir. 1988).

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Finally, petitioner should keep in mind that the petition should not contain argument;
instead, he should present his claims as clearly and succinctly as he can, with only such

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For the Northern District of California

United States District Court

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factual allegations as would “point to a ‘real possibility of constitutional error.’” Rule 4

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Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970).

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Without setting a rigid limit, it seems unlikely that more than ten pages would be necessary

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to set out even complex claims. If petitioner wishes to present argument and further

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develop the facts, he may do so in a separate memorandum or brief in support of the

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petition.

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CONCLUSION

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Petitioner must file an amended petition within twenty-eight days from the date of

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this order. The amendment must include the caption and civil case number used in this

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order and the words SECOND AMENDED PETITION on the first page. Failure to amend

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within the designated time will result in the dismissal of the case. The amended petition

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completely replaces the original petition, so petitioner must include in it all the claims he

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wishes to present, and he may not incorporate any other document by reference.

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IT IS SO ORDERED.

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Dated: November 15, 2012.
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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