Perez v. Allison

Filing 11

ORDER DIRECTING PETITIONER TO FILE A SECOND AMENDED COMPLAINT. The second amended petition must be filed no later than thirty (30) days from the date this order is filed. Failure to file a timely response in accordance with this order will result in the dismissal of this action without prejudice and without further notice to Petitioner. The Clerk is instructed to include two copies of the court's form petition to Petitioner with a copy of this order. Signed by Judge Edward J. Davila on 6/23/2011. (Attachments: # 1 Form Habeas Petition)(ecg, COURT STAFF) (Filed on 6/24/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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MARIO RENE PEREZ,

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Petitioner,

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vs.

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K. ALLISON, Warden,
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Respondent.
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No. C 10-05947 EJD (PR)
ORDER DIRECTING PETITIONER TO
FILE A SECOND AMENDED
PETITION

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Petitioner, a California state prisoner, filed a pro se petition for a writ of

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habeas corpus under 28 U.S.C. § 2254, challenging his state conviction. On April

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20, 2011, the Court dismissed the petition with leave to amend claim 3 of the

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petition. (Docket No. 4.) In the alternative, Petitioner was given leave to file notice

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to strike claim 3 from the petition and proceed solely with claims 1 and 2. (Id. at 2.)

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On June 6, 2011, Petitioner was granted leave to file an amended petition to

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amend claim 3 of his original petition. (See Docket No. 9.) In an initial review, the

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Court found that claim 3, which alleged that “counts 1 and 4 are time barred by the

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statute of limitations,” failed to state a claim because Petitioner did not allege a

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violation of a federal or constitutional right. (Docket No. 4 at 2.) Petitioner was

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directed to file an amended petition to remedy the deficiency of claim 3. (Id.)
Order Directing P to file Second Am. Pet.
P:\PRO-SE\SJ.EJD\HC.10\Perez05947_eot-am2.wpd

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Petitioner was directed to “include all claims in the amended petition that he wishes

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to raise in this action, i.e., claims 1 and 2.”

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On May 18, 2011, Petitioner filed a two page, handwritten “Amended

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Petition,” in which he states that he “respectfully ask[s] that Count 3 be added to the

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Petition for Writ of Habeas Corpus.” (Docket No. 8 at 1.) The information

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provided in this two page document is insufficient to state cognizable claims as to

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either claims 1 and 2 from the original petition or to claim 3, which remains unclear.

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In the interest of justice, the Court will dismiss the amended petition with
leave to amend. Petitioner must use the court’s form petition, and provide all
the information required therein with respect to the state conviction that he is

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For the Northern District of California

United States District Court

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challenging and all the claims he wishes to raise. The second amended petition must

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include the caption and civil case number used in this order, No. C 10-05947 EJD

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(PR), and must include the words SECOND AMENDED PETITION on the first

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page. The second amended petition must be filed no later than thirty (30) days

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from the date this order is filed.

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Failure to file a timely response in accordance with this order will result

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in the dismissal of this action without prejudice and without further notice to

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Petitioner.

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The Clerk is instructed to include two copies of the court’s form petition to
Petitioner with a copy of this order.

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DATED:

June 23, 2011

EDWARD J. DAVILA
United States District Judge

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Order Directing P to file Second Am. Pet.
P:\PRO-SE\SJ.EJD\HC.10\Perez05947_eot-am2.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

MARIO RENE PEREZ,

Case Number: CV10-05947 EJD

Petitioner,

CERTIFICATE OF SERVICE

v.
K ALLISON, Warden,
Respondent.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
6/24/2011
That on
, I SERVED a true and correct copy(ies) of the
attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s)
hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into
an inter-office delivery receptacle located in the Clerk's office.

Mario Rene Perez G-37655
California Substance Treatment Facility and State Prison
P. O. Box 5246
Corcoran, CA 93212
Dated:

6/24/2011
/s/

Richard W. Wieking, Clerk
By: Elizabeth Garcia, Deputy Clerk