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Ellison v. Sisto

United States District Court, E.D. California
May 13, 2008
No. CIV S-06-2740 FCD DAD P (E.D. Cal. May. 13, 2008)

Opinion

No. CIV S-06-2740 FCD DAD P.

May 13, 2008


ORDER


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

On January 10, 2007, the undersigned ordered respondent to file a response to petitioner's habeas petition. On March 7, 2007, respondent filed a timely answer. On June 18, 2007, petitioner filed a timely traverse, together with an ex parte application for stay and abeyance pending exhaustion of his ineffective assistance of trial and appellate counsel claims in the California Supreme Court. In his application, petitioner informed the court that he had already mailed his petition to the California Supreme Court and was awaiting a decision. Respondent opposed petitioner's application for stay and abeyance, and petitioner filed a reply.

While petitioner's application for stay and abeyance was pending, on December 28, 2007, petitioner filed a motion to amend his petition. Petitioner informed the court that the California Supreme Court had denied his petition on November 28, 2007, thereby exhausting his ineffective assistance of counsel claims. Petitioner requests leave to amend his petition to include the claims. Respondent has not opposed the motion.

Habeas corpus petitions may be amended as provided in the rules of procedure applicable to civil actions. 28 U.S.C. § 2242. "The court should freely give leave [to amend] when justice so requires." Federal Rule of Civil Procedure 15(a)(2). Good cause appearing, petitioner's motion will be granted.

Petitioner is cautioned that the original and amended petitions must state claims that are tied to a common core of operative facts will relation back be in order for purposes of the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996. See Fed.R.Civ.P. 15(c); Mayle v. Felix, 545 U.S. 644, 664 (2005).

In accordance with the above, IT IS HEREBY ORDERED that:

1. Petitioner's June 18, 2007 application for stay and abeyance is denied as moot;

2. Petitioner's December 28, 2007 motion for leave to amend is granted;

3. Petitioner is granted thirty days from the date of this order in which to file an amended petition that includes all of his exhausted claims. Any amended petition must be filed on the form employed by this court and must state all claims and prayers for relief on the form. It must bear the case number assigned to this action and must bear the title "Amended Petition"; and

4. The Clerk of the Court is directed to send petitioner the form for habeas corpus application.


Summaries of

Ellison v. Sisto

United States District Court, E.D. California
May 13, 2008
No. CIV S-06-2740 FCD DAD P (E.D. Cal. May. 13, 2008)
Case details for

Ellison v. Sisto

Case Details

Full title:ROSS BRIAN ELLISON, Petitioner, v. D.K. SISTO, Warden, Respondent

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

Date published: May 13, 2008

Citations

No. CIV S-06-2740 FCD DAD P (E.D. Cal. May. 13, 2008)