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Ruben Garnica v. J. Hartley

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


June 29, 2012

RUBEN GARNICA,
PETITIONER,
v.
J. HARTLEY,
RESPONDENT.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER GRANTING PETITIONER LEAVE TO FILE AMENDED PETITION [30 DAY DEADLINE]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has consented to the jurisdiction of the magistrate judge pursuant to 28 U.S.C. § 636(c).

BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation for his 1979 conviction for murder. He is serving a sentence of seven years to life.

Petitioner filed a petition for writ of habeas corpus on July 6, 2010, in this Court. In that petition, Petitioner alleged that a retroactive change in the law caused by the implementation of California's Proposition 9 on November 4, 2008, exposed him to a longer sentence in violation of the Ex Post Facto Clause of the Constitution. After reviewing the petition, the undersigned concluded that the petition should be dismissed. Petitioner's claim concerning goodtime and worktime credits was found to be speculative and not ripe for review, and Petitioner's allegation concerning the retroactive application of Proposition 9 failed to present a claim for relief. On August 4, 2010, the petition was dismissed.

Petitioner thereafter appealed to the Ninth Circuit Court of Appeals. On April 30, 2012, the Ninth Circuit remanded the matter back to this Court to allow Petitioner the opportunity to amend his petition to state a claim.

ORDER

Accordingly, IT IS HEREBY ORDERED that Petitioner is GRANTED thirty (30) days from the date of service of this order to file a First Amended Petition. Petitioner is advised that the document shall be titled "First Amended Petition" and reference the instant case number.

IT IS SO ORDERED.

20120629

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