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Woolever v. Adams

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


March 12, 2010

ROBERT ALVIN WOOLEVER, JR., PETITIONER,
v.
DARREL ADAMS, RESPONDENT.

ORDER

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the court is petitioner's second motion for a stay and abeyance and petitioner's motion for leave to file an amended habeas petition.

In his motion for leave to file an amended petition, petitioner asserts that he has now exhausted state court remedies with respect to his previously unexhausted claims and that his motion for stay and abeyance has therefore been rendered moot. The court agrees. Therefore, petitioner's motion for a stay and abeyance will be denied as moot.

In his motion for leave to file an amended habeas petition, petitioner requests that he be allowed to add claims which were recently considered by the California Supreme Court in his state habeas exhaustion petition. The Federal Rules of Civil Procedure provide that a party may amend his or her pleading "once as a matter of course at any time before a responsive pleading is served." Fed. R. Civ. P. 15(a). This rule applies to habeas petitions. Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir.2000). Since respondent has not filed a responsive pleading, petitioner's motion will be granted.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's July 6, 2009 motion for a stay and abeyance (Doc. No. 17) is denied as moot;

2. Petitioner's January 8, 2010 motion for leave to file an amended petition (Doc. No. 20) is granted;

3. Within thirty days from the service of this order, petitioner shall file his amended petition that complies with the requirements of the Federal Rules of Civil Procedure; the amended application must bear the docket number assigned this case and must be labeled "Amended Petition;" the amended petition must be complete in itself without reference to any prior pleading*fn1 ; and petitioner must use the form petition provided by the court; and

4. The Clerk of the Court is directed to provide petitioner with the court's form petition for a writ of habeas corpus by a state prisoner.


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