IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
February 23, 2010
FREE ODELL SMITH, PETITIONER,
DERRAL ADAMS, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Petitioner is a state prisoner proceeding without counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On August 21, 2008, the prior magistrate judge assigned to this case issued findings and recommendations that were adopted by the District Judge on September 25, 2008. The court ordered that petitioner's motion to stay the instant action was denied and petitioner was granted 30 days to file an amended petition containing only the exhausted claims of the original petition. Moreover, the findings and recommendations specified the exact claims that were exhausted, claims 4, 5, 12-16, 18, 19 and 23-25. Petitioner submitted an amended petition on November 26, 2008 (Dkt. No. 25), that contained most of the exhausted claims. Just a few days later on December 1, 2008, petitioner filed a notice that he would be amending his petition (Dkt. Nos. 26, 27). On May 19, 2009, petitioner filed a motion for a first amended petition and a first amended petition (Dkt. Nos. 33, 34). This petition also contained most of the exhausted claims of the November 26, 2008, petition.
On June 25, 2009, petitioner filed a motion to amend the petition which included a second amended petition (Dkt. No. 37). This petition only included the claims that were deemed unexhausted in the August 21, 2008, findings and recommendations. However, petitioner indicated that he had exhausted these claims since the court's August 21, 2008 findings and recommendations and wanted to add them to the petition.
On July 14, 2009, respondent filed a motion to strike the second amended petition and have petitioner file an amended petition that contains all exhausted claims in one document pursuant to King v. Attiyeh, 814 F. 2d 565, 567 (9th Cir. 1987) and local rule 15-220.
Respondent's analysis is correct and the motion to strike is granted. Petitioner is granted thirty days to file an amended petition containing all the exhausted claims on which he wishes to proceed.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner's motions to amend (Dkt. Nos. 33, 37) are vacated.
2. Respondent's motion to strike the second amended petition (Dkt. No. 39) is granted.
3. Petitioner shall be granted thirty days to file an amended petition containing all the exhausted claims. Failure to file an amended petition will result in a recommendation that this action be dismissed.
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