Opinion
3:22-cv-05486-JLR-TLF
10-10-2024
JOHN MICHAEL BROOKS, Petitioner, v. JACK WARNER, Respondent.
ORDER DIRECTING PETITIONER TO FILE COMPLETE PROPOSED AMENDED PETITION AND RENOTING MOTION TO LIFT STAY AND AMEND PETITION
THERESA L. FRICKE, UNITED STATES MAGISTRATE JUDGE
The District Court has referred this 28 U.S.C. § 2254 action to United States Magistrate Judge Theresa L. Fricke. Currently before the Court is petitioner John Michael Brooks' motion to lift stay and for leave to file an amended petition for writ of habeas corpus. Dkt. 37.
On July 1, 2022, Petitioner signed his petition for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges his custody under a Cowlitz County Superior Court judgment and sentence. Dkts. 1-1, 8. On July 29, 2022, the Court issued an order to show cause advising petitioner that his petition appeared to be “mixed” - presenting both exhausted and unexhausted claims - and directing petitioner to notify the Court whether he wished to: (1) dismiss the mixed petition without prejudice, allowing him to present his unexhausted claim in state court and then return to federal court to file a new habeas petition containing all of his claims; (2) stay the mixed petition to allow the petitioner to present his unexhausted claims to the state court and then return to the federal court for review of his perfected petition; or (3) delete the unexhausted claim and proceed with the remaining exhausted claims. Dkt. 4. On August 3, 2022, petitioner filed a response requesting that the action be stayed. Dkt. 5.
The Court directed service of the petition and the motion to stay and directed the respondent to respond only to the petitioner's motion to stay. Dkt. 10. On September 29, 2022, the respondent filed a response agreeing to a stay of the action. Dkt. 16. On December 12, 2022, the Court issued an order granting the motion to stay and abey proceedings. Dkt. 17.
Petitioner has now filed the pending motion requesting that the Court lift the stay and grant him leave to file an amended petition to include, it appears, his previously unexhausted claim. Dkt. 37. On October 2, 2024, respondent filed a response stating they do not oppose petitioner's request to lift the stay or his request to amend the petition but do request 45 days to respond to an amended petition. Id.
DISCUSSION
The rules governing relief under 28 U.S.C. § 2254 require that the petition “specify all the grounds for relief available to the petitioner” and “state the facts supporting each ground[.]” Rule 2, U.S.C. foll. § 2254.
Western District of Washington Local Civil Rule (“LCR”) 15 provides, in relevant part:
A party who moves for leave to amend a pleading must attach a copy of the proposed amended pleading as an exhibit to the motion. The party must indicate on the proposed amended pleading how it differs from the pleading that it amends by bracketing or striking through the text to be deleted and underlining or highlighting the text to be added. The proposed amended pleading must not incorporate by reference any part of the preceding pleading, including exhibits.LCR 15.
Here, petitioner has failed to include a complete proposed amended petition with his motion to amend in accordance with LCR 15 and Rule 2, U.S.C. foll. § 2254. However, as respondent does not oppose the motion to amend based upon the claim, arguments, and supporting documents petitioner indicates he wishes to add, the Court hereby ORDERS:
(1) On or before October 23, 2024, petitioner is directed to file a complete proposed amended petition including all of the claims he intends to pursue in this action. Petitioner is advised that the amended petition will act as a complete replacement for his original petition, not as a supplement, and should therefore not incorporate his prior pleadings by reference.
(2) On or before November 6, 2024, respondent may file a supplemental response to the petitioner's submission of the proposed amended petition if they deem appropriate. If respondent does not file a supplemental response, the Court will rely on the previously filed response.
(3) The Clerk is directed to re-note the motion to lift the stay and to amend (Dkt. 37) to November 6, 2024. The Clerk is further directed to provide petitioner the appropriate forms for filing an amended § 2254 petition as well as a copy of the original petition (Dkt. 8) and a copy of petitioner's motion to lift the stay and amend (Dkt. 37). The Clerk is directed to provide a copy of this order to petitioner and counsel for respondent.