Opinion
CASE NO. 2:08-CV-12280.
December 29, 2008
ORDER GRANTING PETITIONER'S MOTION TO AMEND
This matter is before the court on Petitioner's motion for leave to amend his habeas petition to add a claim of ineffective assistance of appellate counsel as good cause for the failure to raise an issue on direct appeal. Petitioner's motion and supporting brief are dated November 28, 2008, although those documents were not filed by the court until December 8, 2008. Respondent filed an answer to the habeas petition on December 3, 2008.
Under the Federal Rules of Civil Procedure, a party may amend his or her pleadings once as a matter of course at any time before a responsive pleading is served. See Fed.R.Civ.P. 15(a). Since Petitioner apparently submitted his documents to prison officials before a responsive pleading was filed in this case, see Houston v. Lack, 487 U.S. 266, 270-76 (1988) (prisoners documents are deemed filed in federal court when submitted to prison officials for mailing under the "prison mailbox rule"), he has the right to amend the petition without seeking permission from the court.
Rule 15(a) applies to habeas corpus actions as it applies to other civil cases. See 28 U.S.C. § 2242 (habeas petitions "may be amended or supplemented as provided in the rules of procedure applicable to civil actions").
Accordingly, IT IS ORDERED that Petitioner's motion for leave to amend [Dkt. # 11] is GRANTED. The information submitted with Petitioner's motion has been filed and shall be considered as part of the petition. If desired, Respondent may file an answer to the supplemental information within 30 days of the filing date of this order. Petitioner shall then have 30 days to file any reply to Respondent's answer(s).
IT IS SO ORDERED.