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Kunitz v. Clark

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 4, 2009

MAXMILLIAN KUNITZ SR., PETITIONER,
v.
KEN CLARK, WARDEN, ET AL., RESPONDENTS.

ORDER

Petitioner is a state prisoner proceeding pro se and in forma pauperis with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. By order filed February 19, 2009, this court directed respondents to answer the petition within forty-five days. On February 23, 2009, petitioner filed a document styled as a request for leave to submit an amended petition. It appears from review of the request that petitioner is seeking leave to file a supplemental petition that adds two additional claims to the petition pending before the court. Petitioner has filed those two new claims with his request, but he has not filed a proposed amended petition that is complete in itself without reference to prior pleadings. Cf. Local Rule 15-220.

Petitioner is correct that, as a general rule, initial pleadings may be amended as of right without leave of court prior to service of a responsive pleading. See Fed. R. Civ. P. 15(a); Rule 11, 28 U.S.C. foll. § 2254. However, petitioner has filed a proposed supplemental pleading, rather than an amended petition, and leave of court is required to file a supplemental pleading. See Fed. R. Civ. P. 15(d); Rule 11, 28 U.S.C. foll. § 2254. The claims raised in the supplemental pleading are grounded in state law. Federal habeas corpus relief is available only for a violation of federal rights. See 28 U.S.C. § 2254. It is unavailable for an error in the interpretation or application of state law. See Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985). For that reason, petitioner's request to proceed on the claims raised in the supplemental pleading will be denied.

In accordance with the above, IT IS HEREBY ORDERED that petitioner's February 23, 2009 request is construed as a request for leave to file a supplemental petition and, so construed, is denied.

20090304

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