Smith v. Kirkland

Filing 13

ORDER requiring petitioner to amend 1 Petition for Writ of Habeas Corpus filed by Antoine Smith in response to 12 letter. Signed by Judge Ronald M. Whyte on 11/10/2008. (rmwlc1, COURT STAFF) (Filed on 11/13/2008)

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ORDER TO AMEND PETITION--No. C-05-05168 RMW MAG

E-FILED on 11/13/2008

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

ANTIONE SMITH, Petitioner, v. RICHARD KIRKLAND, Warden, Respondent.

No. C-05-05168 RMW ORDER TO AMEND PETITION [Re Docket Nos. 1 and 12]

Antione Smith must amend his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 if he wishes to proceed with any newly exhausted claims. Petitioner was convicted of first-degree murder in the Alameda Superior Court, and his conviction was affirmed by the Court of Appeal. See People v. Smith, A102068 (Cal. App. Jul. 8, 2004). The California Supreme Court denied his petition for review. On December 13, 2005, petitioner, represented by counsel, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 11, 2006, petitioner, through counsel, filed a document titled "Citation of New Authority" bringing to the court's attention Holmes v. South Carolina, 547 U.S. 319 (2006). See Docket No. 4.

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In February 2007, petitioner, acting on his own, submitted a motion for leave to file a pro se supplemental brief or amended habeas, claiming that his appellate counsel refused to raise issues he considered to be pertinent to his petition for habeas relief. Petitioner also asked the court to stay proceedings so that he could exhaust in the state court the claims his appellate counsel was unwilling to raise, as well as a claim for ineffective assistance of counsel. See Docket No. 6. By order dated August 28, 2007, the court granted petitioner's request, granting him leave to file pro se briefing and holding the case in abeyance while he exhausted his state court claims. See Docket No. 10. The court gave petitioner 30 days to file pro se briefing and ordered petitioner to clarify whether he will be represented by counsel or representing himself in this case. Id. The court has since received a letter from petitioner stating that the California Supreme Court has denied his state habeas petition. See Docket No. 12. This court, however, did not clearly inform petitioner that after the California Supreme Court denied his petition, he needed to amend his federal petition to assert any newly exhausted claim. Accordingly, petitioner is now advised and ordered to file any amended petition within 30 days of this order. Petitioner advised on September 24, 2007 that he would be represented by counsel. However, no counsel has appeared since that date. Original counsel is advised that he still appears of record and thus has responsibility to the court and his client of record absent substitution. The court orders as follows: 1. The clerk shall serve by mail a copy of this order upon petitioner, petitioner's counsel of record, respondent and the respondent's attorney, the Attorney General of the State of California. 2. The court will then review the amended petition asserting any newly exhausted claims and determine whether an order to show cause will issue. 3. Petitioner and his counsel of record are to file within 30 days the appropriate papers to clarify petitioner's representation. DATED: 11/10/2008

RONALD M. WHYTE United States District Judge

ORDER TO AMEND PETITION--No. C-05-05168 RMW MAG

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Notice of this document has been sent to: P e t i t i o n e r: Antoine Smith T-88061 P.O. Box. 7500 Pelican Bay State Prison Crescent City, CA 95532 Counsel for Petitioner: Walter Pyle Counsel for Respondent: (No appearance) Counsel are responsible for distributing copies of this document to co-counsel that have not registered for e-filing under the court's CM/ECF program. [e-mail]

Dated:

11/13/2008

TSF

ORDER TO AMEND PETITION--No. C-05-05168 RMW MAG

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