The opinion of the court was delivered by: Hon. William McCurine, Jr. U.S. Magistrate Judge United States District Court
1) ORDER ALLOWING PETITIONER TO AMEND PETITION
2) ORDER TO RESPONDENT TO FILE
Petitioner, a state prisoner proceeding pro se, has requested to amend his petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. The request is GRANTED.
Federal Rule of Civil Procedure 15(a) provides in pertinent part that after a responsive pleading is filed, "a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." The strong federal policy favoring the disposition of cases on the merits and permitting amendment with "extreme liberality," DCD Programs Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1986), is balanced against four factors: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, and (4) futility of amendment, see United States ex rel. Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 1527 (9th Cir. 1995); Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996).
Petitioner seeks to challenge the constitutionality of his sentence in light of the recent Supreme Court case of Cunningham v. California, 127 S.Ct. 856 (2007). Cunningham has held certain aspects of California's determinate sentencing law unconstitutional. Therefore, the Court finds that Petitioner is not seeking leave to amend in bad faith or to cause undue delay. Therefore based upon foregoing the Court issues the following Order:
1. Petitioner's Supplement to Petitioner's Traverse in Support of Writ of Habeas Corpus ("Supplement") previously received but not filed with the Court shall be filed. The Supplement together with Petitioner's original petition shall be construed as Petitioner's First Amended Petition.
2. On or before July 27, 2007, Respondent shall file a response. Respondent need not reply to the entire Petition anew but may limit its response to the "Supplement."
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