Opinion
No. CIV S-06-2091 GEB DAD P.
October 17, 2008
ORDER
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has paid the filing fee.
On October 2, 2008, petitioner filed a request to submit supplemental briefing in light of the recent decision of the Califronia Supreme Court in In re Lawrence, ___ Cal. 4th ___, 190 P.3d 535 (2008). Petitioner also requests a stay of this action until the U.S. Court of Appeals for the Ninth Circuit issues a decision in Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008),reh'g en banc granted, 527 F.3d 797 (9th Cir. May 16, 2008).
First, the court will not allow the piecemeal filing of supplemental briefs in this action. However, petitioner may amend his petition as provided in the Federal Rules of Civil Procedure.See Rule 11, Fed.R. Governing § 2254 Cases. Under Rule 15, a party may amend his pleading once as a matter of course at any time before a responsive pleading is served. See Fed.R.Civ.P. 15(a). In the present case, no responsive pleading has been served. Accordingly, petitioner may file an amended petition incorporating his new arguments under In re Lawrence.
Petitioner is advised that any amended petition must be filed on the form employed by this court, must state all claims and prayers for relief on the form, and must state clearly what conviction or parole decision petitioner seeks to challenge. Moreover, it is not clear from petitioner's original petition whether he seeks to challenge his underlying state court conviction or a Parole Board decision denying him parole. Petitioner is advised that he may only challenge his underlying conviction or a parole decision, not both, in this action. See Rule 2(e), Fed.R. Governing § 2254 Cases. If he seeks to challenge both, he must do so in separate actions. Petitioner is further advised that, although he may submit a separate memorandum to support his petition for relief, the court's application form must contain all relevant claims, and must provide the court with all necessary information.
Finally, after a review of the record and the relevant case law, this court concludes that petitioner's request to stay this action until the Ninth Circuit issues a decision in Hayward should be denied. See Landis v. North American Co., 299 U.S. 248, 254 (1936) (a district court has broad discretion in deciding whether to stay proceedings in its own court).
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner's application for writ of habeas corpus is dismissed with leave to amend within thirty days from the date of this order;
2. 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";
3. Petitioner's October 2, 2008 request to file supplemental briefing (Doc. No. 5) is denied;
4. Petitioner's October 2, 2008 request to stay this action (Doc. No. 5) is denied; and
5. The Clerk of the Court is directed to send petitioner the form for habeas corpus application.