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White v. Sisto

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION


January 16, 2009

DAVID L. WHITE, PETITIONER,
v.
D.K SISTO, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Edward F. Shea United States District Judge

ORDER REQUIRING THE FILING OF A SECOND AMENDED PETITION

Before the Court is Petitioner David L. White's Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. (Ct. Rec. 11.) After conducting the required screening under Rule 4 of the Rules Governing Section 2254 Cases, the Court concludes Petitioner failed to allege facts to establish the timeliness of his petition. Accordingly, as set forth below, Petitioner must file a second amended petition.

A person in custody pursuant to a state court judgment can request a federal court to determine if his custody is in violation of the United States Constitution pursuant to 28 U.S.C. § 2254. The habeas corpus petition is subject to 28 U.S.C. § 2244(d)'s one-year statute of limitations - part of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Therefore, the habeas petition must be filed within one (1) year of the latest following four (4) dates:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). Here, there is no allegation of an impediment to filing an application - subsection (B) - , nor an allegation of recently discovered facts - subsection (D). Furthermore, subsection (C) is inapplicable because the constitutional rights asserted by Petitioner - the right to effective assistance of counsel and the right to be free from prosecutorial misconduct - are not recently-recognized rights. Accordingly, the subsection that is potentially applicable is subsection (A). However, Petitioner alleges no facts to assist the Court in determining whether this petition complies with the "tight time line." Mayle v. Felix, 545 U.S. 644, 662 (2005). Petitioner fails to identify the dates of the appellate rulings reviewing his 1999 conviction and sentence. Without this information, the Court is unable to assess the petition's timeliness.

The petition's timeliness is also dependent upon the habeas claims' filing date. Petitioner filed the initial complaint on April 17, 2008. This complaint, however, did not assert habeas claims; rather, it asserted the existence of an illegal black market for tobacco products in prison. It was not until November 13, 2008, that Petitioner sought habeas relief. The instant amended petition was then filed on November 24, 2008.

Because "[a]n amended habeas petition "does not relate back (and thereby escape AEDPA's one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth," it is vital to determine whether the claims in the amended petition are "tied to a common core of operative facts" in either the initial complaint or the November 13, 2008 habeas petition. Hebner v. McGrath, 543 F.3d 1133, 1138 (9th Cir. 2008) (citing Mayle, 545 U.S. at 650, 664)). Because Petitioner's April 17, 2008 complaint did not include related habeas claims, the amended habeas petition does not relate back to this date. Yet, it does relate back to the November 13, 2008 habeas petition because the two (2) petitions are "tied to a common core of operative facts." Id. (citing Mayle, 545 U.S. at 664). Accordingly, Petitioner's second amended petition for writ of habeas relief must establish that "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review" was no earlier than November 14, 2007.

For the reasons given above, IT IS HEREBY ORDERED:

1. Petitioner shall file a second amended petition within sixty (60) days of the date of this Order. This second amended petition shall: a. be legibly rewritten or retyped in its entirety; b. be an original and not a copy and may not incorporate any part of the prior petitions by reference; c. be a single document; d. be clearly labeled "Second Amended Petition" and cause number CV-08-2041-EFS must be written in the caption. The Second Amended Petition will operate as a complete substitute for - rather than a supplement to - the present petition; and e. include facts establishing the timeliness of this petition under 28 U.S.C. § 2244(d)(1).

2. Plaintiff is cautioned that if he fails to amend within sixty (60) days as directed, the Court will dismiss the complaint for failure to comply with this Court Order and/or for untimeliness under AEDPA.

IT IS SO ORDERED. The District Court Executive is directed to enter this Order and forward a copy to Plaintiff.

20090116

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