(HC) Bolton v. McEwen, No. 2:2014cv00803 - Document 21 (E.D. Cal. 2014)

Court Description: ORDER signed by Magistrate Judge Carolyn K. Delaney on 10/17/14 ORDERING that the Clerk of Court is directed to redesignate the findings and recommendations filed September 2, 2014 as an Order; Respondents motion to dismiss 13 is partially gra nted as follows: Petitioners application for writ of habeas corpus is dismissed with leave to amend within 30 days from the date of this order; and the Clerk of the Court is directed to send petitioner the courts form for application for writ of habeas corpus.(Dillon, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 D’ARSEY L. BOLTON, 12 13 14 15 No. 2:14-cv-0803 GEB CKD P Petitioner, v. ORDER SCOTT McEWEN, Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. On September 2, 2014, the undersigned filed findings and a 19 recommendation that respondent’s motion to dismiss the petition (ECF No. 15) be granted due to 20 the court’s lack of subject matter jurisdiction over the sole claim presented. (ECF No. 19.) 21 Petitioner has filed objections to the findings and recommendations. (ECF No. 20.) 22 In his objections, petitioner “asks this court if it can toll petitioner’s time to file an 23 amended petition with the issues that [were] raised in petitioner’s petition for review that was 24 denied in March 2014.” (ECF No. 20 at 1.) It appears that petitioner is referring to certain claims 25 raised in the California Supreme Court, which he lists as “new evidence, sentence greater than 26 legislature intended, perjury.” (ECF No. 1 at 2.) 27 28 Under AEDPA, the limitation period is not tolled for the time a federal habeas application is pending in federal court. Duncan v. Walker, 533 U.S. 167, 181-182 (2011). However, if 1 1 claims in an amended federal petition “relate back” to claims in a timely-filed first petition, they 2 will be considered timely. Mayle v. Felix, 545 U.S. 644, 650 (2005); Anthony v. Cambra, 236 3 F.3d 568, 576 (9th Cir. 2000). “An amended habeas petition does not relate back . . . when it 4 asserts a new ground for relief supported by facts that differ in both time and type from those the 5 original pleading set forth.” Hebner v. McGrath, 543 F.3d 1133, 1138 (9th Cir. 2008) (quoting 6 Mayle, 545 U.S. at 650). Here, as the facts underlying petitioner’s proposed new claims appear to differ in “time 7 8 and type” from the facts underlying his original claim, it is not at all clear that such claims would 9 “relate back” to the original petition for purposes of tolling.1 However, petitioner will be granted 10 leave to file an amended petition. Such a petition should include only exhausted claims which 11 assert that petitioner is “in custody in violation of the Constitution or laws . . . of the United 12 States.” 28 U.S.C. § 2254(a). Failure to timely file an amended petition will result in a 13 recommendation that this action be dismissed. 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. The Clerk of Court is directed to redesignate the findings and recommendations filed 16 September 2, 2014 as an Order; 17 2. Respondent’s motion to dismiss (ECF No. 13) is partially granted as follows: 18 3. Petitioner’s application for writ of habeas corpus is dismissed with leave to amend 19 within thirty days from the date of this order; 20 21 4. Any amended petition must bear the case number assigned to this action and the title “Amended Petition”; and 5. The Clerk of the Court is directed to send petitioner the court’s form for application for 22 23 writ of habeas corpus. 24 Dated: October 17, 2014 25 26 27 2/bolt0803.114 1 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE The court expresses no opinion as to whether the original petition in this action is timely. 28 2

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