Daily v. Haviland

Filing 10

ORDER: That the 9 Brief: Amended Memorandum in Support Amended Petition for Writ of Habeas Corpus is STRICKEN FROM THE THE RECORD. Petitioner shall file a revised Memorandum within (14) fourteen-days of this Order. Signed by Judge Saundra Brown Armstrong, on 6/1/10. (lrc, COURT STAFF) (Filed on 6/1/2010) Modified on 6/2/2010 (jlm, COURT STAFF). Modified on 6/2/2010 (jlm, COURT STAFF).

1 2 3 4 5 6 DARREL KING, 7 8

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

Case No: C 10-0338 SBA (PR) ORDER STRIKING MEMORANDUM IN SUPPORT OF AMENDED PETITION FOR WRIT OF HABEAS CORPUS

Petitioner, vs.

9 MATTHEW CATE, Secretary of the California Department of Corrections and Rehabilitation, 10 Respondent. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

On January 25, 2009, Petitioner, a state prisoner, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On February 17, 2010, the Court issued an Order to Show Cause directing respondent to answer the petition or file a motion to dismiss. On February 26, 2010, Petitioner, through counsel, filed a "1st Amended Petition for Writ of Habeas Corpus," which is accompanied by an 83-page memorandum of points and authorities. (Docket 8, 9.) Petitioner's memorandum of points and authorities is in violation of Civil Local Rule 7, which limits briefs to a maximum of 25 pages. Because Petitioner's brief well exceeds the page limit imposed by the Civil Local Rules, and because Petitioner has neither sought nor received leave to file an oversized brief, the Court strikes Petitioner's memorandum from the record. See Swanson v. U.S. Forest Serv., 87 F.3d 339, 345 (9th Cir. 1996). However, the Court will afford Petitioner an opportunity to cure this deficiency and re-file a memorandum that complies with the rules of this Court. Accordingly, IT IS HEREBY ORDERED THAT: 1. Petitioner's 1st Amended Memorandum of Points & Authorities in Support of

Petition for Writ of Habeas Corpus (Docket 9) is STRICKEN from the record. Within 14 days

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of the date this Order is filed, Petitioner shall file a revised memorandum in compliance with the Court's Local Rules. The Court will issue an amended Order to Show Cause upon receipt and review of the amended memorandum. The amended memorandum should take into account the Ninth Circuit's recent decision in Hayward v. Marshall, --- F.3d ---, 2010 WL 1664977 (9th Cir. Apr. 22, 2010) (en banc), which was rendered after Petitioner filed his memorandum. 2. The Clerk of the Court shall serve a copy of this Order upon Respondent and

Respondent's attorney, the Attorney General of the State of California. The Clerk shall also serve a copy of this Order on Petitioner's counsel, Steve DeFilipis, 625 N. First St., San Jose, CA 95112. 3. The deadlines scheduled in the Court's Order to Show Cause issued on February

17, 2010 (Docket 6) are held in abeyance pending the Court's issuance of an Amended Order to Show Cause. IT IS SO ORDERED. Dated: June 1, 2010 _______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge

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