Opinion
C20-01497-JLR-SKV
12-14-2021
JOSEPH LOCHUCH EWALAN, Petitioner, v. DON HOLBROOK, Respondent.
ORDER ON “MOTION FOR WRIT OF HABEAS CORPUS TO ADMIT ADDITIONAL MEMORANDUM OF AUTHORITIES” AND “MOTION IN SUPPORT OF WRIT TO RELEASE/SUPPLEMENT AMENDED HABEAS WRIT”, AND RENOTING MOTION TO PRODUCE COURT OF APPEAL TRANSCRIPT AND HABEAS ANSWER
S. KATE VAUGHAN, UNITED STATES MAGISTRATE JUDGE
This is a 28 U.S.C. § 2254 habeas action. Petitioner has filed an amended petition in this matter, Respondent has filed an answer and Petitioner has filed a response to the answer. Dkts. 13, 34, 40. Currently pending before the Court are Petitioner's habeas petition, Dkt. 13, Petitioner's “motion for writ of habeas corpus to admit additional memorandum of authorities”, Dkt. 43, Petitioner's “motion in support of writ to release/supplement amended habeas writ”, Dkt. 45, Petitioner's “motion to order defendants to produce court of appeal transcript”, Dkt. 39, Petitioner's “motion for leave to expand record under Rule 7”, Dkt. 58, and Petitioner's “motion to expand record re two items, ” Dkt. 59.
By order dated September 23, 2021, the Court directed Respondent to respond to Petitioner's “motion for writ of habeas corpus to admit additional memorandum of authorities”, Dkt. 43, and “motion in support of writ to release/supplement amended habeas writ”, Dkt. 45. Dkt. 50. The Court noted that, although somewhat unclear, it appeared Petitioner was seeking to include additional arguments and case law in support of his habeas petition as well as potentially attempting to raise new claims. Id.
Respondents responded to the motions indicating that it appeared Petitioner was attempting to supplement his existing claims with additional argument and case law and that, to the extent that was the case, Respondent did not object. Dkt. 52. However, Respondent indicated that to the extent Petitioner was attempting to raise new habeas claims, such a request should be denied as Petitioner had failed to properly move to amend and failed to include a copy of the proposed amended habeas petition as required by Local Rule 15. Id.
Upon reviewing the parties' submissions and the relevant record, the Court hereby ORDERS:
(1) The Court construes Petitioner's “motion for writ of habeas corpus to admit additional memorandum of authorities”, Dkt. 43, and “motion in support of writ to release/supplement amended habeas writ”, Dkt. 45, as requests to supplement his habeas petition with additional arguments and case law presented in support of existing claims only. Accordingly, Petitioner's motions, Dkts. 43 and 45, are GRANTED and the Court will consider any additional arguments and caselaw presented in support of Petitioner's existing claims only.
(2) Petitioner is advised that if he intends to attempt to raise new claims (in addition to the existing 14 claims in his amended habeas petition), he must file a proper motion to amend his habeas petition and include a proposed amended petition containing all grounds for relief. See Local Rule 15.
Local Rule 15 provides, in its entirety:
A party who moves for leave to amend a pleading, or who seeks to amend a pleading by stipulation and order, must attach a copy of the proposed amended pleading as an exhibit to the motion or stipulation. 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. If a motion or stipulation for leave to amend is granted, the party whose pleading was amended must file and serve the amended pleading on all parties within fourteen (14) days of the filing of the order granting leave to amend, unless the court orders otherwise.
(3) The Court notes that Petitioner has recently filed a “motion for leave to expand record under Rule 7”, Dkt. 58, and a “motion to expand record re two items, ” Dkt. 59, which are both noted for consideration on December 17, 2021. Because the Court finds it appropriate to consider these motions, Dkts. 58 and 59, as well as Petitioner's “motion to order defendants to produce court of appeal transcript”, Dkt. 39, in considering the entirety of the habeas petition and the sufficiency of the record, the Clerk is directed to re-note Petitioner's motion to order defendants to produce court of appeal transcript”, Dkt. 39, and the Respondent's answer to the petition, Dkt. 34, for consideration to December 17, 2021.
The Clerk is directed to send copies of this order to the parties and to the Honorable James L. Robart.