Opinion
No. 2:14-cv-614-EFB P
01-12-2015
DAVID EDWARD FULLMORE, Petitioner, v. MCDONALD, Respondent.
ORDER
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On March 5, 2014, petitioner filed a petition challenging a 2011 conviction in Sacramento County Superior Court for second degree robbery and false imprisonment. On July 17, 2014, petitioner commenced a new action by filing a second petition challenging the same 2011 conviction. See Fullmore v. Holland, No. 2:14-cv-1691-EFB, ECF No. 1. Applying Ninth Circuit precedent, the court ordered that the second petition be construed as a motion to amend the original petition. See ECF No. 15 at 1 (citing Woods v. Carey, 525 F.3d 886, 888-90 (9th Cir. 2008)). Respondent has filed nothing in response to the motion. For the reasons that follow, the motion is granted.
An application for a writ of habeas corpus "may be amended or supplemented as provided in the rules of procedure applicable to civil actions." 28 U.S.C. § 2242. Federal Rule of Civil Procedure 15(a)(1) provides that "[a] party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." See also Fed. R. Civ. P. 15 Advisory Committee Notes to 2009 Amendments ("[T]he right to amend once as a matter of course is no longer terminated by service of a responsive pleading."). Here, petitioner's original petition was served on respondent on April 2, 2014, ECF No. 6, and respondent served a responsive pleading on July 2, 2014, ECF No. 12-2. Petitioner, who is proceeding on his original petition, filed his motion to amend on July 17, 2014. See Fullmore v. Holland, No. 2:14-cv-1691-EFB, ECF No. 1. Because petitioner did not file his motion to amend until more than three months after serving his original petition, he may not amend his petition as a matter of course under Rule 15(a)(1)(A). However, petitioner filed the motion to amend just fifteen days after respondent served his responsive pleading. Because petitioner sought amendment within twenty-one days after respondent served a responsive pleading, petitioner may amend his petition as a matter of course under Rule 15(a)(1)(B).
Under Local Rule 220,
[E]very pleading to which an amendment or supplement is permitted as a matter of right . . . shall be retyped and filed so that it is complete in itself without reference to the prior or superseded pleading. No pleading shall be deemed amended or supplemented until this Rule has been complied with.E.D. Cal. Local R. 220. Although petitioner's motion describes the claim he intends to add to his petition, he has not filed an amended petition that complies with Local Rule 220.
Accordingly, IT IS HEREBY ORDERED that petitioner's motion to amend (ECF No. 16) is granted. Petitioner shall file an amended petition that complies with Local Rule 220 within thirty (30) days from the date of service of this order. DATED: January 12, 2015.
/s/_________
EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE