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Stone v. California Department of Corrections

United States District Court, E.D. California
May 16, 2008
1:08-cv-00141-LJO-TAG HC (E.D. Cal. May. 16, 2008)

Opinion

1:08-cv-00141-LJO-TAG HC.

May 16, 2008


ORDER GRANTING PETITIONER'S MOTION TO FILE AMENDED PETITION (Doc. 6) ORDER REQUIRING AMENDED PETITION TO BE FILED WITHIN THIRTY DAYS ORDER DIRECTING CLERK OF COURT TO SEND PETITIONER A FORM PETITION FOR WRIT OF HABEAS CORPUS


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

Petitioner filed his original federal petition on January 28, 2008. (Doc. 1). On February 8, 2008, Petitioner filed a motion for leave to file an amended petition, contending that he wished to withdraw Grounds One and Two because he had determined that they had not been exhausted. (Doc. 6).

DISCUSSION

A petitioner may amend a petition for writ of habeas corpus once "as a matter of course," and without leave of Court, before a response has been filed under Federal Rule of Civil Procedure 15(a), as applied to habeas corpus actions pursuant to 28 U.S.C. § 2242 and Rule 11 of the Rules Governing Section 2254 Cases. Calderon v. United States District Court (Thomas), 144 F.3d 618, 620 (9th Cir. 1998); Bonn v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). Leave of Court is required for all other amendments. Rule Civ. P. 15(a).

Here, no responsive pleading has been filed. Hence, there is no impediment to Petitioner's filing of an amended petition. Petitioner should note, however, that, at this early point in the proceedings, the Court expresses no opinion whatsoever regarding whether Grounds One and Two in the original petition were or were not exhausted in the California Supreme Court. In lieu of Petitioner's motion to file an amended petition, the Court has not conducted a preliminary screening of the original petition, and, in light of Petitioner's stated intent to file an amended petition, any such preliminary screening of the original petition would now be meaningless. Petitioner may include whatever claims he wishes in his amended petition; the Court will then screen the amended petition, as it does all other habeas petitions, to determine if the amended meets the basic requirements regarding the applicable statute of limitations, federal question jurisdiction, personal jurisdiction, and exhaustion.

Accordingly, GOOD CAUSE having been presented, IT IS HEREBY ORDERED as follows:

1 Petitioner's motion to amend (Doc. 6), is GRANTED. Petitioner is granted thirty (30) days from the date of service of this order in which to file his amended petition for writ of habeas corpus. Petitioner is also cautioned that all grounds for relief must raise cognizable federal claims. The amended petition should be clearly and boldly titled "AMENDED PETITION," contain the appropriate case number, and be an original signed under penalty of perjury. Petitioner is advised that the form petition must set forth all claims for relief, including the facts and arguments in support of those claims. Petitioner should also note that every pleading to which an amendment is permitted must be retyped or rewritten and filed so that it is complete in itself without reference to the prior or superseded pleading. Local Rule 15-220.
2. The Clerk of Court is DIRECTED to send Petitioner a blank form petition for federal prisoners filing pursuant to § 2254.
IT IS SO ORDERED.


Summaries of

Stone v. California Department of Corrections

United States District Court, E.D. California
May 16, 2008
1:08-cv-00141-LJO-TAG HC (E.D. Cal. May. 16, 2008)
Case details for

Stone v. California Department of Corrections

Case Details

Full title:NEIL EDWARD STONE, Petitioner, v. CALIFORNIA DEPARTMENT OF CORRECTIONS…

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

Date published: May 16, 2008

Citations

1:08-cv-00141-LJO-TAG HC (E.D. Cal. May. 16, 2008)