Opinion
20-3199-JWL
10-10-2023
GREGORY E. BELL, Petitioner, v. TOMMY WILLIAMS, Respondent.
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
This matter is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 originally filed in July 2020, after which Petitioner filed an amended petition; the case was then stayed pending completion of related proceedings in state court. The stay was lifted on July 14, 2023 and the Court granted Petitioner leave to file a motion to amend his petition. (Doc. 17.) The Court then granted two extensions of time to Petitioner, making the motion for leave to file a second amended petition due on September 25, 2023. (Doc. 21.)
Shortly after the Court granted the second extension of time, it received from Petitioner documents that appeared to seek leave to file a second amended petition, a proposed draft of which was also submitted. The following day, the Court granted the motion, ordered the proposed second amended petition filed, and directed Petitioner to show cause why two of the grounds for relief asserted therein should be considered on their merits. Four days later, Petitioner moved the Court to strike the previous filings because they were inadvertently filed. On September 21, 2023, the Court granted the motion, striking the previous filings and the related order, and gave Petitioner until October 16, 2023, to file a complete and proper second amended petition. (Doc. 26.)
On September 26, the Court received from Petitioner a “motion for leave to file a third amended petition” and an attached “proposed third amended petition.” (Doc. 27.) Liberally construing the motion as a motion to seek leave to file a second amended petition-since the original second amended petition had been stricken-the Court granted the motion on September 28, 2023, and ordered the attached proposed petition filed as the second amended petition in this matter. (Doc. 28.) In the same order, the Court dismissed two of the grounds in what was filed as the second amended petition and ordered Respondent to file an answer to the remaining asserted grounds for relief. Id.
The following day-September 29, 2023-the Court received from Petitioner a motion to withdraw and/or strike the motion received on September 26, 2023. (Doc. 30.) In that document, which is now before the Court, Petitioner explains that circumstances at the prison where he is incarcerated have caused him to experience a delay in receiving the Court's orders. Thus, for example, when Petitioner filed his “motion for leave to file a third amended petition,” he was unaware that the Court already had granted the motion to strike the second amended petition. He now asks the Court to strike what was titled “motion for leave to file third amended petition.”
It is not clear whether Petitioner, at the time he filed the most recent motion to withdraw and/or strike his motion for leave to file a third amended petition, was aware of the Court's most recent order, which granted the motion in question, directed that the attached proposed petition be filed, dismissed two of the grounds therein, and ordered an answer to the remaining asserted grounds for relief. Because of the delay in Petitioner receiving the Court's orders, the Court has waited until now to rule on Petitioner's most recent motion to withdraw and/or strike in the hopes that Petitioner is now caught up on the events in this case.
The Court appreciates Petitioner's situation but also notes that striking Petitioner's motion would require also striking the Court's related order and halting the forward progress of this long- pending matter. Moreover, from the motion to withdraw, it is unclear how a future proposed amended petition would differ from the currently operative second amended petition, located at Doc. 29, to which Respondent has been ordered to answer. Thus, the motion to withdraw and/or strike (Doc. 30) will be denied. If Petitioner wishes to further amend the currently operative second amended petition (Doc. 29), he may file a motion for leave to file a third amended petition, attaching a proposed third amended petition to that motion. The Court will rule on that motion if and when it is filed and the Court is aware that it “should freely give leave [to amend] when justice is required.” See Fed.R.Civ.P. 15(a)(2). For now, however, the second amended petition remains operative and the deadline for Respondent to file his answer remains in effect.
IT IS THEREFORE ORDERED that the motion to withdraw and/or strike (Doc. 30) is denied. If Petitioner wishes to further amend the currently operative petition, he must file a motion for leave to file a third amended petition and attach to any such motion a proposed third amended petition.
IT IS SO ORDERED.