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Anthony Clarke v. Matthew Cate

June 19, 2012

ANTHONY CLARKE, PETITIONER,
v.
MATTHEW CATE, SECRETARY OF CALIFORNIA DEPARTMENT OF CORRECTIONS, RESPONDENT.



The opinion of the court was delivered by: Frederick F. Mumm United States Magistrate Judge

I. PROCEEDINGS

MEMORANDUM DECISION DENYING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254

Petitioner Anthony Clarke, previously a state prisoner in the custody of the California Department of Corrections, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ("Petition") on October 1, 2010. Petitioner and respondent consented to proceed before the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). On November 16, 2010, respondent filed a Return to the Petition. Petitioner did not file a Reply.

On or about June 27, 2011, petitioner constructively filed another Petition for Writ of Habeas Corpus by a Person in State Custody ("Second Petition").*fn1 Respondent filed a motion to dismiss the Second Petition on October 12, 2011 based on the pendency of the Petition. Petitioner neither filed an opposition to the motion to dismiss nor requested an extension of time within which to do so.

On November 30, 2011, the Court issued a Report and Recommendation recommending that the Second Petition be dismissed without prejudice and that it be construed as a proposed amended petition in these proceedings. On April 10, 2012, the District Judge assigned to the Second Petition accepted the recommendation and dismissed the Second Petition without prejudice.

In the meantime, the Court prematurely ruled on the merits of the Petition, found it without merit, and entered judgment dismissing the Petition with prejudice. Upon discovering the prematurity of the ruling, the Court reopened these proceedings pending a determination of whether the Petition should be amended to include the claims contained in the Second Petition. Upon entry of the order dismissing the Second Petition, the Court issued a Minute Order setting the following briefing schedule:

Petitioner is granted 21 days from the date of this order [i.e., up to May 17, 2012] to file any briefs, declarations, or other evidence he wishes the Court to consider in ruling on the motion for leave to amend.

Respondent must file any opposition within 42 days of the date of this order.

Petitioner must file any reply to respondent's opposition within 10 days of receipt of respondent's opposition.

Having received nothing from petitioner, the Court issued an order on May 22, 2012 noting petitioner's failure to comply with the briefing schedule and stating, in part:

To the extent petitioner desires to pursue a motion to amend his petition, he is granted an extension of time to June 7, 2012 within which to demonstrate why the Court should allow the petition to be amended.

Petitioner is advised that his failure to file anything which attempts to make such a showing will be construed as a withdrawal by petitioner of any request to amend his petition.

The Court's May 22, 2012 order was returned to the Court as undeliverable on June 8, 2012. The notation on the envelope states that the ...


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