Austin v. Pfeiffer, 17cv1950-MMA (WVG). (2018)
Court: District Court, N.D. California
Number: infdco20180309c79
Visitors: 3
Filed: Mar. 07, 2018
Latest Update: Mar. 07, 2018
Summary: ORDER DENYING MOTION TO DISMISS AS MOOT [Doc. No. 7] MICHAEL M. ANELLO , District Judge . On September 25, 2017, Petitioner, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. 2254. See Doc. No. 1. Respondent moves to dismiss the petition as barred by the statute of limitations pursuant to 28 U.S.C. 2244(d). See Doc. No. 7. On February 28, 2018, the assigned magistrate judge accepted Petitioner's amended petition for filing. 1
Summary: ORDER DENYING MOTION TO DISMISS AS MOOT [Doc. No. 7] MICHAEL M. ANELLO , District Judge . On September 25, 2017, Petitioner, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. 2254. See Doc. No. 1. Respondent moves to dismiss the petition as barred by the statute of limitations pursuant to 28 U.S.C. 2244(d). See Doc. No. 7. On February 28, 2018, the assigned magistrate judge accepted Petitioner's amended petition for filing. 1 S..
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ORDER DENYING MOTION TO DISMISS AS MOOT [Doc. No. 7]
MICHAEL M. ANELLO, District Judge.
On September 25, 2017, Petitioner, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. See Doc. No. 1. Respondent moves to dismiss the petition as barred by the statute of limitations pursuant to 28 U.S.C. § 2244(d). See Doc. No. 7. On February 28, 2018, the assigned magistrate judge accepted Petitioner's amended petition for filing.1 See Doc. Nos. 11, 12. Accordingly, the petition which Respondent seeks to dismiss is no longer the operative pleading in this action, as an amended petition supersedes the original petition. See Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). As such, the Court DENIES AS MOOT Respondent's motion to dismiss Petitioner's petition.
The assigned magistrate judge remains designated to conduct all future proceedings in this action as appropriate, consistent with applicable statutes and this District's Local Rules.2 See S.D. Cal. CivLR 72.1.d; HC.2.e.1.
IT IS SO ORDERED.
FootNotes
1. Pursuant to Federal Rule of Civil Procedure 15(a)(1), "[a] party may amend its pleading once as a matter of course within . . . 21 days after service of a motion [to dismiss]. . . ." Fed. R. Civ. P. 15(a)(1). It is unclear whether Petitioner amended his pleading within 21 days after service of Defendants' motion to dismiss, as it appears Petitioner did not sign or date the amended petition. See Doc. No. 12 at 15 of 68. In any event, if Petitioner wishes to further amend his pleadings in this action he must seek leave of Court prior to doing so. See Fed. R. Civ. P. 15(a)(2); see also Mayle v. Felix, 545 U.S. 644, 655 (2005) (Federal Rule of Civil Procedure 15 applicable to habeas proceedings pursuant to 28 U.S.C. § 2242, Federal Rule of Civil Procedure 81(a)(2), and Habeas Corpus Rule 11 [later renumbered as Rule 12).
2. As such, the assigned magistrate judge will set the appropriate deadlines for filing a response to the amended petition via separate order.
Source: Leagle
