Opinion
NO. CV 03-6740 GAF (FMO)
November 18, 2003
ORDER
On November 14, 2003, the court received, but did not file, petitioner's "Motion To A[u]gment the Record and Amend Petition" ("Motion"). Petitioner's Motion appears to be a response to respondent's Reply filed after petitioner filed an Opposition to respondent's Motion to Dismiss. In his Motion, petitioner requests that the court grant him leave to amend his Petition so he may include additional supporting facts to his claims. (Motion at 4-7).
On November 10, 2003, the court issued a Report and Recommendation ("R R") recommending that the Petition be dismissed without prejudice because petitioner's direct appeal is still pending in state court. (R R at 6). The court advised petitioner that his objections to the R R shall be filed and served no later than December 1, 2003. It appears as though petitioner submitted his Motion before receiving the R R.
In any event, nothing in the Motion has caused the court to alter its initial recommendation. Given the court's recommendation that the court abstain from entertaining the Petition while petitioner completes his direct appeal in state court, the court does not believe that justice requires that petitioner be granted leave to amend his Petition.
Based on the foregoing, IT IS ORDERED THAT:
1. Petitioner's "Motion To A[u]gment the Record and Amend Petition" ("Motion") is ordered filed.
2. Petitioner's Motion is denied without prejudice.
3. Petitioner is reminded that his Objections to the court's Report and Recommendation shall be filed and served no later than December 1, 2003. Failure to so object within the time limit specified shall be deemed a consent to any proposed findings of fact.