BRIA v. CURRY

Full title: ROBERT JOHN BRIA, Petitioner, v. BEN CURRY, Warden, Respondent

Court: United States District Court, E.D. California

Date published: Aug 8, 2007

1:06-cv-01334-AWI-TAG HC (E.D. Cal. Aug. 8, 2007)

Opinion

1:06-cv-01334-AWI-TAG HC.

August 8, 2007

ORDER GRANTING PETITIONER'S MOTION TO FILE SUPPLEMENTAL BRIEF (Doc. 6) ORDER REQUIRING PETITIONER TO FILE SUPPLEMENTAL BRIEF WITHIN THIRTY DAYS

THERESA GOLDNER, Magistrate Judge

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Petitioner filed his original federal petition on September 25, 2006. (Doc. 1). On November 29, 2006, Petitioner filed the instant motion to ask Court permission to add a supplemental brief to his petition. (Doc. 6).

A petitioner may amend a petition for writ of habeas corpus once "as a matter of course," and without leave of Court, before a response has been filed under Federal Rule of Civil Procedure 15(a), as applied to habeas corpus actions pursuant to 28 U.S.C. § 2242 and Rule 11 of the Rules Governing Section 2254 Cases.Calderon v. United States District Court (Thomas), 144 F.3d 618, 620 (9th Cir. 1998); Bonn v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). Leave of Court is required for all other amendments. Rule Civ. P. 15(a).

In deciding whether to allow an amendment, the Court may consider "bad faith, undue delay, prejudice to the opposing party, futility of the amendment, and whether the party has previously amended his pleadings." Bonin, 59 F.3d at 844-45 (applying Rule 15(a) in a habeas case).

Here, no responsive pleading has been filed. Accordingly, Petitioner may file an amended petition without leave of Court. However, it appears that Petitioner does not wish to file an amended petition; rather, he appears to be asking simply to supplement the petition already on file with the Court by submitting additional factual and legal arguments in support thereof.

The is the first such request by Petitioner. Since Respondent has not made an appearance in the case nor filed a responsive pleading, the Court perceives no prejudice to any party in granting said motion. Moreover, nothing in the record suggests that Petitioner's motion is being made in bad faith or for the purpose of delay.

Accordingly, GOOD CAUSE appearing therefor, IT IS HEREBY ORDERED that Petitioner's motion to file a supplemental brief in support of his petition for writ of habeas corpus (Doc. 6), is GRANTED. Petitioner has thirty (30) days from the date of service of this Order within which to file his supplemental brief in support of the petition.

IT IS SO ORDERED.