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Clemens v. Sisto

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


October 19, 2010

STEVEN ANTHONY CLEMENS, PETITIONER,
v.
SISTO, RESPONDENT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Petitioner is a state prisoner proceeding without counsel in this habeas corpus action filed June 9, 2008, pursuant to 28 U.S.C. § 2254. This action was reassigned to the undersigned on February 9, 2010.*fn1 The petition is fully briefed on two claims challenging petitioner's conviction-respondent filed an answer on March 5, 2009; petitioner filed his traverse on April 8, 2009. Respondent agrees that the two claims presented in the petition are fully exhausted.

On June 28, 2010, petitioner filed a motion for leave to amend his petition. (Dkt. No. 30.) The motion follows the June 15, 2010 order of the Ninth Circuit Court of Appeals denying petitioner's "application for authorization to file a second or successive [petition] in the district court without prejudice to seeking leave to amend the habeas corpus petition currently pending before the district court. . . ." Clemens v. Swarthout, Case No. 10-71346 (set forth at Dkt. No. 30, p. 2). Petitioner has also attached copies of six orders by the California Supreme Court denying petitioner's various applications for a writ of habeas corpus or requests for review; most post-date the filing of the petition pending in this court. The court's review of these orders, petitioner's brief and his other supporting documents fails to identify the issues petitioner asserts he has now exhausted or, therefore, the claims that petitioner now seeks to add to the petition currently pending in this court. Moreover, the court finds petitioner's recitation of these claims confounding. The court will therefore seek additional briefing before addressing petitioner's motion for leave to amend his petition.

Accordingly, IT IS HEREBY ORDERED that:

1. Respondent shall, within twenty-one (21) days after service of this order, respond to petitioner's motion filed June 28, 2010; and

2. Petitioner may, but need not, file a reply within fourteen (14) days after service of respondent's response; should petitioner reply, such reply shall not exceed five (5) pages in length.

SO ORDERED.


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