Opinion
2:23-cv-1438 KJN P
10-03-2023
JAMES DENERICK NELSON, JR., Petitioner, v. PATRICK COVELLO, Respondent.
ORDER
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
Petitioner is a state prisoner, proceeding pro se, with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On September 11, 2023, petitioner filed a document stating he was exercising his right to amend his petition once without leave of court. However, petitioner did not file a complete amended petition; rather, he simply appended an additional claim five, alleging he was not “tampering with” claims one through four. (ECF No. 10 at 1.) Petitioner states that claim five was presented to the California Supreme Court. (ECF No. 10 at 4.)
Petitioner is correct that he is permitted to amend his petition once as a matter of right before respondent files an answer. However, petitioner must file an amended petition that raises all of his claims in one document. Thus, petitioner's request to amend is denied without prejudice to petitioner filing an amended petition that includes all five claims.
Petitioner is not required to re-file the exhibits appended to his original petition (ECF No. 1 at 28-147). He may instead request that the court append such exhibits to his amended petition.
Respondent is relieved of his obligation to file a responsive pleading. Once petitioner files a complete amended petition, respondent shall file a responsive pleading, as set forth in the August 28, 2023 order, within sixty days after the complete amended petition is filed.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner's request to amend (ECF No. 10) is denied without prejudice.
2. Petitioner is granted thirty days from the date of this order in which to file a complete amended petition that includes all five claims.
3. Respondent is relieved of the obligation to respond to the original petition (ECF No. 1). Once petitioner files the amended petition, respondent shall file a responsive pleading as set forth in the August 28, 2023 order (ECF No. 8).
4. The Clerk of the Court shall send petitioner a copy of the original petition (ECF No. 1 at 1-27), as well as a copy of the fifth claim contained in his September 11, 2023 filing (ECF No. 10 at 2-7), as well as the form for filing a petition for writ of habeas corpus under 28 U.S.C. § 2254.
5. The Clerk of the Court shall serve a copy of this order on Tami Krenzin, Supervising Deputy Attorney General.