Opinion
No. 2:16-cv-1634 GEB GGH
11-17-2016
ROBERT LEE SCOTT, Petitioner, v. DANIEL PARAMO, Respondent.
ORDER
PROCEDURAL BACKGROUND
Petitioner filed his Petition for Writ of Habeas Corpus, ECF No. 1, and Motion to Proceed In Forma Pauperis ("IFP"), ECF No. 2, on July 15, 2016. On August 8, 2016 this court Ordered Petitioner to submit an affidavit in support of his request to proceed IFP within 30 days from the date of the order. ECF No. 4. Petitioner filed a new Motion to Proceed IFP on August 18, 2015. ECF No. 7, and a Trust Fund Account Statement on August 25, 2016. ECF No. 9. Consequently, the court granted the IFP Motion on August 29, 2016l. ECF No. 12. On October 24, 2016 Respondent filed a Motion to Dismiss, ECF No. 15, and lodged paper documents. ECF No. 16. On November 10, 2016 Petitioner filed a Motion to Amend his Petition for Writ of Habeas Corpus, which is the subject this Order will address.
DISCUSSION
According to Petitioner's Motion, the filing of his first petition, which reflected the failure to exhaust some of his claims, did so insofar as his petition to the California Supreme Court was pending at the time of filing his petition in this Court. This failure to exhaust was the basis for Respondent's above-referenced Motion to Dismiss. Petitioner's Motion provides proof that the California Supreme Court denied his petition on October 12, 2016. ECF No. 17. As a result he seeks permission to file an amended petition in lieu of opposing the pending Motion to Dismiss. Petitioner's Motion further explains that he was delayed in responding to the Motion to Dismiss because he was unable to access the law library at the prison until November 7, 2016. Id. This information is sufficient for the court to overlook the lateness of the filing, i.e., beyond the normal fourteen (14) days after the filing of such a motion.
CONCLUSION
In light of the foregoing, it is HEREBY ORDERED that:
1. Petitioner shall have 45 days from the date of this Order to file a First Amended Petition;
2. Respondent's Motion to Dismiss is vacated without prejudice;
3. Respondent is directed to file a response to Petitioner's First Amended Petition within 60 days from its service and, if the response is an answer, that answer shall be accompanied by all transcripts and other documents relevant to the issues presented in the Amended Petition. See Rule 5, 28 U.S.C. foll. 28 U.S.C. § 2254;
4. If the response to the First Amended Petition is an answer, Petitioner's reply, if any, shall be filed and service within thirty days after service of that answer;
5. If the response to the First Amended Petition is a motion, Petitioner's opposition, or statement of non-opposition, to the motion shall be filed and served within thirty days after service of that motion and Respondent's reply, if any, shall be filed and served within fourteen days thereafter.
IT IS SO ORDERED. Dated: November 17, 2016
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE