Opinion
Case No.: 1:06 CV 922.
January 11, 2008
ORDER
On April 17, 2006, Petitioner Richard E. Carley ("Petitioner"), pro se, filed a Petition for Writ of Habeas Corpus ("Petition," ECF No. 1) pursuant to 28 U.S.C. § 2254. The court held the Petition in abeyance until March 28, 2007. (ECF Nos. 6, 10.) On April 25, 2007, the court granted Petitioner's Motion to amend his habeas petition by adding a ground for relief. (ECF No. 15.) On July 9, 2007, Respondent Stuart Hudson, Warden ("Respondent") filed his Return of Writ. (ECF No. 18.) Petitioner filed a Traverse on August 31, 2007.
Petitioner filed the pending Motion to Amend Petition on September 10, 2007. (ECF No. 22.) Respondent did not file an Opposition. Assigned Magistrate Judge Nancy Vecchiarelli filed a Report and Recommendation on December 5, 2007, recommending that the Motion be granted in part and denied in part. (Report and Recommendation, ECF No. 23.) In particular, the Magistrate Judge recommended that Petitioner's Motion be granted to the extent that Petitioner sought to add an actual innocence claim in response to Respondent's procedural default argument. ( Id. at 1-2.) The Magistrate Judge further recommended that the Motion be denied to the extent that Petitioner sought to add a new, substantive claim for false/coerced confession, on the grounds that this claim would not be exhausted or colorable on its merits. ( Id. at 2-3.)
In his Objections to the Report and Recommendation, Petitioner states that he agrees with the portion of the Report and Recommendation that characterizes Petitioner's Motion as a response to Respondent's procedural default argument. (ECF No. 25, at 2.) Petitioner also states that he was not trying to add a new substantive claim, and "objects to the Magistrate[']s assertions regarding his actual innocence claims." ( Id.)
Although Petitioner's objections are somewhat unclear, it appears that Petitioner's Motion to Amend Petition was not intended to add additional claims, but instead to act as a "surreply" to arguments made in Respondent's Return of Writ. Consequently, to the extent that Petitioner simply seeks to supplement his arguments and response to Respondent's arguments, Petitioner's Motion is granted.
Furthermore, the court finds, after reviewing the Magistrate Judge's Report and Recommendation and all other relevant documents, that the Magistrate Judge's conclusions are fully supported by the record and controlling case law. Accordingly, to the extent that Petitioner seeks to assert either an actual innocence claim or a claim based on false/coerced confession, the court adopts as its own the Magistrate Judge's Report and Recommendation (ECF No. 23), which grants the Motion in regard to the former claim and denies it regarding the latter.
Therefore, Petitioner's Motion to Amend Petition (ECF No. 22) is hereby granted in part and denied in part.
IT IS SO ORDERED.