Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus. See 28 U.S.C. § 2254. Petitioner seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). Petitioner also requests a "stay and abeyance" pending the exhaustion of state remedies and permission to amend his petition should any new claims arise.
Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit. Therefore, the court will grant petitioner's request for leave to proceed in forma pauperis.
A judge "entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. It is not apparent from the face of the application that the petitioner is not entitled to relief. Therefore, the court will order respondent to file and serve a response to petitioner's application and/or his motion to stay and abey.
With respect to petitioner's request to amend his petition should any new claims arise, he is advised that "[a] party may amend its pleading once as a matter of course before being served with a responsive pleading," after which, "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a); see also, Rule 11, Rules Governing Section 2254 Proceedings. Since respondent has not yet filed and served a responsive pleading, petitioner is free to file an amended petition without leave of court or respondent's consent. Once respondent files an answer, however, petitioner must either obtain leave of court or obtain written consent from respondent. Moreover, it appears that petitioner does not intend to amend his petition at this time. Therefore, the court will deny petitioner's motion as unnecessary. The court also notes that an amended petition must "be retyped and filed so that it is complete in itself without reference to the prior or superseded pleading." E.D. Cal. L.R. 15-220. If and when petitioner has additional claims that he would like to add to his petition, he must file an amended petition that it is complete in itself without reference to the October 22, 2008 petition, along with a motion to amend, if the circumstances require that petitioner seek leave of court.
Accordingly, it is hereby ordered that:
1. Petitioner's request for leave to proceed in forma pauperis is granted.
2. Respondent shall file and serve a response to petitioner's application and/or his motion to stay and abey, within 60 days from the date of this order. See Rule 4, Fed. R. Governing § 2254 Cases. Any response shall be accompanied by any and all transcripts or other documents relevant to the determination of the issues presented in the application. See Rules 4, 5, Fed. R. Governing § 2254 Cases.
3. Petitioner's reply, if any, shall be filed and served within 30 days of service of an answer.
4. If the response to petitioner's application is a motion, petitioner's opposition or statement of non-opposition shall be filed and served within 30 days of service of the motion, and respondents' reply, if any, shall be filed within 15 days thereafter.
5. The Clerk of the Court shall serve a copy of this order together with a copy of petitioner's October 22, 2008, petition for a writ of habeas corpus with any and all attachments and a copy of petitioner's October 22, 2008 motion to stay and abey on Michael Patrick Farrell, Senior Assistant Attorney General for the State of California. The Clerk of the Court also shall serve on the Senior Assistant Attorney General the consent form used in this court.
6. Petitioner's October 22, 2008 motion to amend is denied unnecessary.
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