Sifuentes v. Hedgpeth

Filing 43

ORDER RE FOURTH AMENDED PETITION (pjhlc3, COURT STAFF) (Filed on 11/2/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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MIGUEL GALINDO SIFUENTES,
No. C 09-2902 PJH
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For the Northern District of California

United States District Court

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Petitioner,
ORDER RE FOURTH
AMENDED PETITION

vs.
P. BRAZELTON, Warden,

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Respondent.
/

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This is a habeas corpus case originally filed pro se by a state prisoner pursuant to

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28 U.S.C. § 2254. On August 10, 2012, two days after the court denied petitioner’s request

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to file a fourth amended petition, petitioner retained counsel. Subsequently, on August 21,

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2012, the court granted petitioner’s stipulated request for leave to file a fourth amended

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petition and set related deadlines. On October 28, 2012, petitioner filed a request for a

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three-month extension to file the fourth amended petition. Petitioner subsequently filed his

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proposed order in support of the request on November 1, 2012, the day the fourth

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amended petition was due. That same day, November 1, 2012, petitioner filed the fourth

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amended petition.

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Given the age of the case, the fact that petitioner has already had nearly two and

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one-half months to prepare the fourth amended petition (and has in fact filed one), and the

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absence of sufficient reasons for the additional time, the court finds that good cause does

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not exist for an extension of time and DENIES the request for an extension of time. The

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court will treat the fourth amended petition filed November 1, 2012 as the operative petition.

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That petition contains five claims for relief:

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(1)

that his Fifth, Sixth, and Fourteenth Amendment due process, equal

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protection, and fair trial rights were violated when the prosecution

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peremptorily challenged nine potential jurors on the basis of their race;

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(2)

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protection, and fair trial rights were violated when the prosecution challenged

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for cause two potential jurors on the basis of their race;

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(3)

that his Fifth, Sixth, and Fourteenth Amendment due process, equal

application of California’s felony murder rule to petitioner violated the

Eighth Amendment’s Cruel and Unusual Punishment Clause;

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For the Northern District of California

United States District Court

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(4)

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to a jury trial because it enabled the judge, rather than the jury, to determine

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malice aforethought, an element of the charge; and

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(5)

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jurors regularly slept through key portions of his trial.

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Liberally construed, the claims appear colorable under 28 U.S.C. § 2254 and merit

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an answer from respondent. The deadlines set forth in the court’s August 21, 2012 order

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remain in effect. Respondent’s answer is due is due no later than December 3, 2012, and

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petitioner’s traverse is due no later than January 2, 2013.

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application of California’s felony murder rule violated petitioner’s right

petitioner’s due process and fair trial rights were violated when several

IT IS SO ORDERED.

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Dated: November 2, 2012

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PHYLLIS J. HAMILTON
United States District Judge

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