Burnett v. People of the State of California

Filing 22

ORDER denying 17 Peitioner's Motion to Reopen Case. If Petitioner wishes to file a full Second Amended Petition and attempt to establish equitable tolling, he may do so by August 20, 2010. Signed by Judge Dana M. Sabraw on 7/15/10. (All non-registered users served via U.S. Mail Service)(lao)

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-JMA Burnett v. People of the State of California Doc. 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Petitioner Ester Burnett, a prisoner in state custody proceeding pro se, filed a petition for writ 18 of habeas corpus pursuant to 28 U.S.C. § 2254. On September 25, 2009, this Court adopted the 19 Magistrate Judge's Report & Recommendation ("R&R") and dismissed the petition as time-barred 20 under the one-year statute of limitations provided in the Antiterrorism and Effective Death penalty Act 21 of 1996 ("AEDPA"), 28 U.S.C. § 2244(d). (September 25, 2009 Order, Doc. 16.) The petition was 22 dismissed without prejudice to allow Petitioner to more fully establish a claim for equitable tolling. 23 The basis for allowing Petitioner to amend his claim was evidence in the record that Petitioner had 24 been treated for mental illness. (Id. at 2.) However, it was unclear whether he was incompetent at the 25 time his claim expired under AEDPA, i.e. the time between when his conviction became final and 26 when he filed his first petition for habeas relief in state court. (Id.) 27 Petitioner has not filed a Second Amended Petition. Rather, on May 19, 2010, Petitioner filed 28 a motion to reopen the case, in which Petitioner states that he seeks to establish his equitable tolling -108CV1739 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ESTER BURNETT, Petitioner, vs. CASE NO. 08cv1739 DMS (JMA) ORDER DENYING PETITIONER'S MOTION TO REOPEN CASE [Doc. 17.] MATTHEW CATE, Secretary of the California Department of Corrections, Respondent. Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 claim. The motion, however, makes no mention of any facts relating to his mental illness or equitable tolling. Plaintiff contends his sentence is unconstitutional, but has not established that his claim is not time-barred by the AEDPA. Accordingly, Petitioner's motion to reopen is denied. If Petitioner wishes to file a full Second Amended Petition and attempt to establish equitable tolling, he may do so by August 20, 2010. IT IS SO ORDERED. DATED: July 15, 2010 HON. DANA M. SABRAW United States District Judge -2- 08CV1739

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