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Williams v. Hill

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


May 6, 2010

CHRISTOPHER WILLIAMS, PETITIONER,
v.
RICK HILL, WARDEN RESPONDENT.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER VACATING ORDER TO RESPOND ISSUED MARCH 15, 2010, AND GRANTING PETITIONER OPPORTUNITY TO SUBMIT SECOND AMENDED PETITION

[Docs. 5, 10]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Petitioner filed the instant petition for writ of habeas corpus on March 8, 2010. (Court Doc. 1.) On March 15, 2010, the Court directed Respondent to file a response to the petition. (Court Doc. 5.)

On April 28, 2010, Petitioner filed a first amended petition. (Court Doc. 10.) A petitioner may amend a petition for writ of habeas corpus once "as a matter of course," and without leave of Court, before a response has been filed under Federal Rule of Civil Procedure 15(a), as applied to habeas corpus actions pursuant to 28 U.S.C. § 2242 and Rule 11 of the Rules Governing Section 2254 Cases. Calderon v. United States District Court (Thomas), 144 F.3d 618, 620 (9th Cir. 1998); Bonn v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). Leave of Court is required for all other amendments. Rule Civ. P. 15(a).

In this instance, Respondent has not yet filed a response to the petition and Petitioner may amend the petition as a matter of right. In the amended petition, Petitioner states "For purposes of this amended petition for writ of habeas corpus petitioner adopts the facts set forth in the opening brief." (Amended Petition, at 1.) However, Petitioner is advised that pursuant to Local Rule 220, the amended petition must be complete in itself without reference to the prior or superseded pleading. In light of Local Rule 220, the Court will grant Petitioner the opportunity to submit a second amended petition that is complete in itself without reference to prior petition.

Based on the foregoing, it is HEREBY ORDERED that:

1. The Court's March 15, 2010, order to respond is VACATED;

2. Within thirty (30) days from the date of service of this order, Petitioner may file a second amended petition; and

3. Failure to comply with this order will result in the action proceeding on Petitioner's first amended petition filed April 28, 2010. (Court Doc. 10.)

IT IS SO ORDERED.

20100506

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