Opinion
1:16-cv-00175 MJS HC
06-08-2016
JUSTIN MICHAEL THUEMLER, Petitioner, v. STANISLAUS COUNTY, Respondent.
ORDER REQUIRING PETITIONER TO ELECT TO PROCEED WITH THE FIRST AMENDED PETITION OR FILE A SECOND AMENDED PETITION
THIRTY (30) DAY DEADLINE
ORDER VACATING ORDER DIRECTING RESPONDENT TO FILE A RESPONSE
(Docs. 6, 11)
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On February 1, 2016, Petitioner filed a petition for writ of habeas corpus with this Court. (ECF No. 1.) The Court reviewed the petition and, on February 8, 2016, directed Respondent to file a response to the petition within sixty (60) days. (ECF No. 6.)
On March 3, 2016, Petitioner filed a second petition for writ of habeas corpus in the Central District of California. On March 15, 2016, that case was transferred to this district and opened as a new petition for writ of habeas corpus. (See E.D.Cal. Case No. 1:16-cv-00175 MJS HC, ECF Nos. 3-4.) The Court construed the new petition as a motion to amend and, on March 23, 2016, closed the later filed action. See Woods v. Carey, 525 F.3d 886 (9th Cir. 2008).
It remains unclear whether Petitioner desires to proceed on the claims presented in the later filed action. Accordingly, the Court hereby ORDERS Petitioner to advise the Court within 30 days as to whether he wants to proceed with the more recently filed petition or to file a Second Amended Petition.
Petitioner is forewarned that Rule 2 of the "Rules Governing Section 2254 Cases" provides that the petition "... must specify all the grounds for relief available to the petitioner; state the facts supporting each ground; state the relief requested..." Rule 2 of the Rules Governing 2254 Cases. Rule 2 further provides that the petition "must substantially follow either the form appended to these rules or a form prescribed by a local district-court rule. The clerk must make forms available to petitioners without charge." Id. at 2(c).
In addition, Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 2255 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990).
Petitioner is advised that an amended petition supercedes the original petition, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be "complete in itself without reference to the prior or superceded pleading." Local Rule 220. Accordingly, Petitioner's last filed amended petition must contain all the claims Petitioner wishes to present before the Court. Plaintiff is warned that "[a]ll causes of action alleged in an original complaint which are not alleged in an amended complaint are waived." King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)). The Court will grant Petitioner leave to determine the pleadings and exhibits he wishes to include in the instant petition.
Accordingly, it is HEREBY ORDERED that:
1. Petitioner is GRANTED thirty (30) days from the date of service of this Order to EITHER: 1) provide notice to the Court that he is electing to proceed with the First Amended Petition (i.e. the petition originally filed in the Central District of California); or 2) submit a SECOND AMENDED PETITION. The amended petition should be clearly and boldly titled "SECOND AMENDED PETITION," contain the appropriate case number, and be an original signed under penalty of perjury;
2. The Clerk of Court is DIRECTED to send Petitioner a blank form petition for petitioners filing pursuant to 28 U.S.C. § 2254; and,
3. Petitioner is forewarned that his failure to comply with this order may result in a Recommendation that the petition be dismissed pursuant to Local Rule 110; and
4. The order directing Respondent to file a response to the petition is hereby WITHDRAWN. (Doc. 6.) Upon determining which petition is the operative petition in this case, the Court will screen the petition, and direct Respondent to file a response, if necessary. IT IS SO ORDERED.
Dated: June 8, 2016
/s/ Michael J . Seng
UNITED STATES MAGISTRATE JUDGE