Houston v. Hernandez

Filing 21

ORDER by Judge Whyte denying 18 motion to dismiss and granting motion to amend petition. (rmwlc2, COURT STAFF) (Filed on 5/13/2010)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respondent moves to dismiss the petition for writ of habeas corpus on the ground that it contains unexhausted claims. Petitioner admits that the petition contains unexhausted claims and requests the opportunity to amend the petition to strike any reference to the unexhausted claims. The Ninth Circuit has "consistently held that district courts must allow petitioners to amend their mixed petitions to strike their unexhausted claims as an alternative to suffering dismissal." Guillory v. Roe, 329 F.3d 1015, 1016 (9th Cir. 2003). The court therefore grants petitioner's motion to amend the petition, striking the unexhausted claims (claims 3, 5, and 7), and denies respondent's motion to dismiss the petition for failure to exhaust state remedies. Petitioner shall file with the court an amended petition raising only exhausted claims (claims 1, 2, 4, and 6) within 10 days of the issuance of this order. Respondent shall have 60 days from the
ORDER GRANTING PETITIONER'S MOTION TO AMEND AND DENYING RESPONDENT'S MOTION TO DISMISS --No. C-07-04511 RMW CCL

E-FILED on

5/13/10

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

RAYMOND HOUSTON, Petitioner, v. ROBERT J. HERNANDEZ, Respondent.

No. C-07-04511 RMW ORDER GRANTING PETITIONER'S MOTION TO AMEND AND DENYING RESPONDENT'S MOTION TO DISMISS [Re Docket No. 18]

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

filing of the amended petition to file an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. Respondent shall file with the answer a copy of all portions of the state record that have been transcribed previously and that are relevant to a determination of the issues presented by the petition. If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the court and serving it on respondent within 30 days of his receipt of the answer.

DATED:

5/13/10

RONALD M. WHYTE United States District Judge

ORDER GRANTING PETITIONER'S MOTION TO AMEND AND DENYING RESPONDENT'S MOTION TO DISMISS --No. C-07-04511 RMW CCL 2

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Notice of this document has been electronically sent to: Counsel for Petitioner: Jennifer Lynne Peabody Counsel for Respondent: David H. Rose [e-mail] [e-mail]

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.

Dated:

5/13/10

CCL Chambers of Judge Whyte

ORDER GRANTING PETITIONER'S MOTION TO AMEND AND DENYING RESPONDENT'S MOTION TO DISMISS --No. C-07-04511 RMW CCL 3