Filed: May 17, 2016
Latest Update: May 17, 2016
Summary: ORDER GRANTING PETITIONER'S MOTIONS TO AMEND THE PETITION (Docs. 26-27). MICHAEL J. SENG , Magistrate Judge . Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. Petitioner filed the instant petition for writ of habeas corpus on August 4, 2014. (Pet., ECF No. 1.) On August 26, 2014, the Court granted Petitioner's motion to stay the petition under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002). (Order, ECF No. 7.) Un
Summary: ORDER GRANTING PETITIONER'S MOTIONS TO AMEND THE PETITION (Docs. 26-27). MICHAEL J. SENG , Magistrate Judge . Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. Petitioner filed the instant petition for writ of habeas corpus on August 4, 2014. (Pet., ECF No. 1.) On August 26, 2014, the Court granted Petitioner's motion to stay the petition under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002). (Order, ECF No. 7.) Und..
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ORDER GRANTING PETITIONER'S MOTIONS TO AMEND THE PETITION
(Docs. 26-27).
MICHAEL J. SENG, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner filed the instant petition for writ of habeas corpus on August 4, 2014. (Pet., ECF No. 1.) On August 26, 2014, the Court granted Petitioner's motion to stay the petition under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002). (Order, ECF No. 7.) Under the Kelly procedure, the Court allowed Petitioner to file an amended petition that did not include unexhausted claims. The Court then imposed a stay to allow Petitioner to exhaust the claims in state court. However, Petitioner was directed to file a motion to lift the stay within 30 days of the California Supreme Court issuing a final order resolving Petitioner's unexhausted claims. He was also directed to file an amended habeas petition containing all claims, including newly exhausted claims, with his motion to lift the stay. (Id.)
Petitioner did not contact the Court upon exhausting his claims in state Court, and on January 19, 2016, the Court vacated the stay. (ECF No. 16.) On February 4, 2016, the Court ordered Respondent to file a response to the petition, which she did on March 30, 2016. (Answer, ECF No. 21.)
On April 28, 2016, and again on May 10, 2016, Petitioner filed motions to amend the petition to include the claims that he attempted to exhaust in state court. Petitioner failed to file a motion to lift the stay and present the Court with an amended petition containing the newly exhausted claims. He now moves to amend the petition to add those claims.
Rule 15(a) of the Federal Rules of Civil Procedure provides, in relevant part:
(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires. Petitioner has not sought consent from Respondent to file the motion to amend.
Accordingly, amendment may be permitted only upon court order. The standard for granting leave to amend is liberal, and leave should be freely given when justice so requires. Further, the Court has a "duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance of technical procedural requirements." Chess v. Dovey, 790 F.3d 961, 971 (9th Cir. 2015) (citing Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). The procedural requirements for properly navigating a stay under the Kelly procedure are complex. While Petitioner should have notified the Court that his claims were exhausted, and filed an amended complaint containing the newly exhausted claims with the notice to lift the stay, Petitioner failed to do so. He now requests the opportunity to amend the petition three months after the Court vacated the stay. Respondent has filed an answer to the claims that were originally presented in the petition, and will be inconvenienced by having to now respond to review additional claims that Petitioner has allegedly exhausted. However, the additional effort does not rise to the level of prejudice to Respondent that would form the basis to deny leave to amend.
Accordingly, Petitioner's motion to file an amended petition is GRANTED. However, upon filing the amended petition, Respondent will have the opportunity to present procedural challenges to any newly added claims, including failure to exhaust state remedies or expiration of the one year limitations period, if applicable. Petitioner is also advised that to the extent that the new amended petition contains unexhausted claims, Petitioner must file a renewed motion to stay the petition and meet the procedural requirements of a stay to prevent dismissal of the unexhausted claims.
The court hereby ORDERS Petitioner to file an Amended Petition within thirty (30) days of the date of service of this order.
Petitioner is forewarned that Rule 2 of the "Rules Governing Section 2254 Cases" provides that the petition ". . . must specify all the grounds for relief available to the petitioner; state the facts supporting each ground; state the relief requested . . ." Rule 2 of the Rules Governing 2254 Cases. Rule 2 further provides that the petition "must substantially follow either the form appended to these rules or a form prescribed by a local district-court rule. The clerk must make forms available to petitioners without charge." Id. at 2(c).
In addition, Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 2255 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990).
Petitioner is advised that an amended petition supercedes the original petition, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be "complete in itself without reference to the prior or superceded pleading." Local Rule 220. Accordingly, Petitioner's last filed amended petition must contain all the claims Petitioner wishes to present before the Court. Plaintiff is warned that "[a]ll causes of action alleged in an original complaint which are not alleged in an amended complaint are waived." King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)). The Court will grant Petitioner leave to determine the pleadings and exhibits he wishes to include in the instant petition.
Accordingly, it is HEREBY ORDERED that:
1. Petitioner is GRANTED thirty (30) days from the date of service of this Order to SUBMIT an AMENDED PETITION. The amended petition should be clearly and boldly titled "AMENDED PETITION," contain the appropriate case number, and be an original signed under penalty of perjury;
2. The Clerk of Court is DIRECTED to send Petitioner a blank form petition for petitioners filing pursuant to 28 U.S.C. § 2254; and,
3. Petitioner is forewarned that his failure to comply with this order may result in a Recommendation that the petition be dismissed pursuant to Local Rule 110.
IT IS SO ORDERED. PETITION UNDER 28 USC § 2254 FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY
(If petitioner is attacking a judgment which imposed a sentence to be served in the future, petitioner must fill in the name of the state where the judgment was entered. If petitioner has a sentence to be served in the future under a federal judgment which he wishes to attack, he should file a motion under 28 U.S.C. § 2255, in the federal court which entered the judgment.)
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY
Instructions-Read Carefully
(1) This petition must be legibly handwritten or typewritten, and signed by the petitioner under penalty of perjury. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury. All questions must be answered concisely in the proper space on the form.
(2) If you have more than 4 grounds for relief, you may attach pages with the remaining grounds; however, the format of the attached pages must be the same as the petition and you must provide only a brief statement of facts. No citation to legal authority is required. A brief or memorandum in support of the petition may also be attached; however, the form petition must be complete in itself and may not simply refer to the attachments.
(3) Upon receipt of a fee of $5 your petition will be filed if it is in proper order.
(4) If you do not have the necessary funds for transcripts, counsel, appeal and other costs connected with a petition of this type, you may request permission to proceed in forma pauperis, in which event you must execute form AO-240 or other form required by the court, setting forth information establishing your inability to pay the costs. If you wish to proceed in forma pauperis, you must have an authorized officer at the penal institution complete the certificate as to the amount of money and securities on deposit to your credit in any account in the institution.
(5) Only judgments entered by one court may be challenged in a single petition. If you seek to challenge judgments entered by different courts either in the same state of in different states, you must file separate petitions as to each court.
(6) You must include all grounds for relief and all facts supporting such grounds for relief in the petition you file seeking relief from any judgment of conviction.
(7) When the petition is fully completed, the original and at least two copies must be mailed to the Clerk of the United States District Court whose address is
Clerk, U.S. District Court
2500 Tulare Street, Suite 1501
Fresno, California 93721
(8) Petitions which do not conform to these instructions will be returned with a notation as to the deficiency.
(Revised 2/15/06)
