(JFM) (HC) Callegari v. Hickman, et al, No. 2:1999cv01686 - Document 31 (E.D. Cal. 2005)

Court Description: FINDINGS and RECOMMENDATIONS signed by Judge Peter A. Nowinski on 11/29/05. The 11/22/04 Stay and the 26 9/2/04 Order Granting Leave to file a first - amended complaint are hereby VACATED. It is recommended that ptnr's 21Motion for leave to Amend be denied and that this matter proceed on ptnr's 18/30/99 Petition.(Brown, T)

Download PDF
(JFM) (HC) Callegari v. Hickman, et al Doc. 31 Case 2:99-cv-01686-MCE-PAN Document 31 Filed 11/30/2005 Page 1 of 3 1 2 3 4 5 6 7 8 United States District Court 9 Eastern District of California 10 11 12 Carl Lee Callegari, 13 14 15 16 17 18 Petitioner, No. Civ. S 99-1686 MCE PAN P vs. Findings and Recommendations Anthony Lamarque, Warden, Respondent. -oOoAugust 30, 1999, petitioner filed a petition for a writ of 19 habeas corpus claiming the trial court’s reasonable doubt 20 instruction diluted the state’s burden of proof. 21 1999, a different magistrate judge appointed counsel. 22 2000, respondent answered the petition. 23 October 7, April 25, October 14, 2003, petitioner moved to amend his petition 24 to add a claim his sentence violates the Eighth Amendment. 25 September 2, 2004, I found the new claim time-barred but found 26 that pursuant to Ninth Circuit precedent, the claim related Dockets.Justia.com Case 2:99-cv-01686-MCE-PAN Document 31 Filed 11/30/2005 Page 2 of 3 1 back to the date of the original petition and granted the 2 request. 3 See Felix v. Mayle, 379 F.3d 612 (9th Cir. 2004). September 7, 2004, respondent requested this action be 4 stayed pending the United States Supreme Court’s decision in 5 Mayle v. Felix, 73 USLW 3286 (Oct. 25, 2004)(No. 04-563). 6 October 12, 2004, petitioner filed a first-amended petition. 7 November 22, 2004, the court stayed this action and directed 8 petitioner to notify the court when the Supreme Court resolved 9 Mayle v. Felix. 10 11 12 September 20, 2005, petitioner notified this court that the Supreme Court decided Felix. In Felix, the Supreme Court held that an amended habeas 13 petition does not relate back to the original when it “asserts a 14 new ground for relief supported by facts that differ in both time 15 and type from those the original pleading set forth.” Felix, 125 16 S.Ct. at 2566. 17 In this case, the core facts of the initial petition relate 18 to how the judge instructed the jury on the state’s burden of 19 proof. 20 petitioner’s sentence. 21 common and so are not “tied to a common core of operative facts.” 22 Felix, 125 S.Ct. at 2574. 23 Amendment challenge to his sentence does not relate back to the 24 date of the original petition. 25 26 The core facts of the new claim relate to the length of The claims have no factual allegations in Therefore, petitioner’s Eighth For these reasons, I hereby vacate the November 22, 2004, stay, vacate the September 2, 2004, order granting leave to file 2 Case 2:99-cv-01686-MCE-PAN Document 31 Filed 11/30/2005 Page 3 of 3 1 a first-amended complaint and recommend that petitioner’s October 2 14, 2003, motion be denied and that this matter proceed on 3 petitioner’s August 30, 1999, petition. 4 Pursuant to the provisions of 28 U.S.C. § 636(b)(l), these 5 findings and recommendations are submitted to the United States 6 District Judge assigned to this case. 7 filed within 20 days of service of these findings and 8 recommendations. 9 Magistrate Judge’s Findings and Recommendations.” Written objections may be The document should be captioned “Objections to The district 10 judge may accept, reject, or modify these findings and 11 recommendations in whole or in part. 12 Dated: November 29, 2005. 13 /s/ Peter A. Nowinski PETER A. NOWINSKI Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 3

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.