KEEL v. TILTON

Full title: JOE HOWARD KEEL, II, Petitioner, v. JAMES TILTON, Respondent

Court: United States District Court, E.D. California

Date published: Jan 23, 2008

1: 06 CV 01073 AWI WMW HC (E.D. Cal. Jan. 23, 2008)

Opinion

1: 06 CV 01073 AWI WMW HC.

January 23, 2008

ORDER GRANTING MOTION TO EXPAND EXHIBIT LIST AND MODIFY RECORD [Doc. 13] ORDER DENYING MOTION TO AMEND PETITION [Doc. 21] ORDER DENYING MOTION TO AMEND PETITION [Doc. 30]

WILLIAM WUNDERLICH, Magistrate Judge

Petitioner is a prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. Section 2254. On April 12, 2007, Petitioner filed a motion for leave to expand the exhibit list and modify the record to include the decision by the California Supreme Court denying his petition for review. Good cause appearing, Petitioner's motion is HEREBY GRANTED.

On September 21, 2007, Petitioner filed a motion for leave to amend his petition. In his motion, Petitioner apparently seeks to have the court consider the claim recently exhausted by the California Supreme Court's denial of his petition for review. Although Respondent argued in his answer that the claim of prosecutorial misconduct had been procedurally defaulted, Respondent also addressed this claim on the merits. The court will also address this claim when it resolves the petition. Thus to the extent that Petitioner seeks to have this claim addressed, his motion to amend is GRANTED. Petitioner also makes reference to unspecified "properly exhausted collateral claims overlooked in Respondent's Answer to the Petition," and claims that it would be "appropriate" for the court to allow him to amend his petition to include those claims. The court has already explained to Petitioner that Respondent had no obligation to address claims other than those raised in the petition. Petitioner having provided no explanation as to why these claims were not included in the original petition and the case having been fully briefed, the motion to amend is HEREBY DENIED. The Clerk of the Court is directed to RETURN to Petitioner the proposed amended petition lodged with the court [Doc. 22].

On December 4, 2007, Petitioner filed a motion to amend his petition to add a claim pursuant to Cunningham v. California, 127 S.Ct. 856 (2007). Cunningham was decided after Petitioner filed the present petition, and Petitioner provides no indication that he has exhausted his state judicial remedies as to any claim under Cunningham. It appears, therefore, that any amendment to add a claim pursuant to Cunningham would be futile. Accordingly, Petitioner's request to amend the petition to include such a claim is HEREBY DENIED. The Clerk of the Court is directed to return to Petitioner the proposed second amended petition lodged with the court [Doc. 33].

IT IS SO ORDERED.