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Burnett v. Cate

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


July 15, 2010

ESTER BURNETT, PETITIONER,
v.
MATTHEW CATE, SECRETARY OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS, RESPONDENT.

The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

ORDER DENYING PETITIONER'S MOTION TO REOPEN CASE [Doc. 17.]

Petitioner Ester Burnett, a prisoner in state custody proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On September 25, 2009, this Court adopted the Magistrate Judge's Report & Recommendation ("R&R") and dismissed the petition as time-barred under the one-year statute of limitations provided in the Antiterrorism and Effective Death penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d). (September 25, 2009 Order, Doc. 16.) The petition was dismissed without prejudice to allow Petitioner to more fully establish a claim for equitable tolling. The basis for allowing Petitioner to amend his claim was evidence in the record that Petitioner had been treated for mental illness. (Id. at 2.) However, it was unclear whether he was incompetent at the time his claim expired under AEDPA, i.e. the time between when his conviction became final and when he filed his first petition for habeas relief in state court. (Id.)

Petitioner has not filed a Second Amended Petition. Rather, on May 19, 2010, Petitioner filed a motion to reopen the case, in which Petitioner states that he seeks to establish his equitable tolling 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.

20100715

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