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GRANDISON v. VIRGA, 2:12-CV-2474-LKK-CMK-P. (2014)

Court: District Court, E.D. California Number: infdco20140530a70 Visitors: 63
Filed: May 29, 2014
Latest Update: May 29, 2014
Summary: ORDER CRAIG M. KELLISON, Magistrate Judge. Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. Pending before the court is respondent's motion to strike petitioner's amended petition (Doc. 25). Petitioner previously filed a motion to stay these proceedings and allow him to file an amended petition. That motion was denied as petitioner failed to set forth the basis for amending his petition nor did he provide the court
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ORDER

CRAIG M. KELLISON, Magistrate Judge.

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to strike petitioner's amended petition (Doc. 25).

Petitioner previously filed a motion to stay these proceedings and allow him to file an amended petition. That motion was denied as petitioner failed to set forth the basis for amending his petition nor did he provide the court with his proposed amended petition for review. In denying the motion to amend, the court explained that Rule 15 of the Federal Rules of Civil Procedure require either a court order or stipulation to file an amended petition where, as here, the responding party has filed a responsive pleading. Petitioner was informed that if he wishes to file an amended petition, he must file a proper motion, along with a proposed amended petition, inform the court as to what his new claims are, how they relate back to his original petition if necessary, and whether the new claims are exhausted.

Despite the court's instructions, petitioner failed to file a motion to amend, and simply submitted his amended petition to be filed. As set forth above, this is inadequate. The proper procedure under Rule 15 is to submit a motion to amend, setting forth good cause for the amended petition to be filed. Therefore, respondent's motion to strike will be granted without prejudice to petitioner filing a renewed motion to amend, along with his proposed amended petition, setting forth the changes in his petition, the reasons why they were not included in the original petition, whether the new claims relate back if necessary, or any other good cause for filing an amended petition. Alternatively, petitioner may proceed in his original petition and simply file a traverse in response to respondent's answer. If no motion to amend is filed within the time allowed herein, this case will proceed on petitioner's original petition.

Accordingly, IT IS HEREBY ORDERED that:

1. Respondent's motion to strike (Doc. 25) is granted;

2. The Clerk of the Court is directed to strike petitioner's amended petition (Doc. 23);

3. Within 30 days, petitioner may file a new motion to amend, along with a proposed amended petition, setting forth good cause to allow the amended petition, denied without prejudice; and

4. Alternatively, petitioner may proceed in his original petition, and file a traverse if he so chooses, within 30 days of the date of this order.

Source:  Leagle

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