UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
May 10, 2010
KENNETH LEE HARRIS, PETITIONER,
KENT CLARK, WARDEN RESPONDENT.
The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DISREGARDING PETITIONER'S MOTIONS FOR EXTENSION OF TIME, DENYING MOTION FOR COPY, GRANTING MOTION FOR EXTENSION OF TIME TO SUBMIT AMENDED PETITION, AND DIRECTING CLERK OF COURT TO SEND PETITIONER A SECTION 2254 FORM PETITION [Docs. 3, 5, 6, 14]
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 3, 2010 in the United States District Court for the Eastern District of California, Sacramento Division. (Court Doc. 1.) The petition was transferred to this Court on March 12, 2010. (Court Doc. 7.)
On March 3, 2010, Petitioner filed a motion for leave to file a belated Notice of Appeal. (Court Doc. 3.) On March 11, 2010, Petitioner filed a motion for a an extension of time to file a traverse and request for the Court to mail of copy of motion to the Attorney General. (Court Docs. 5, 6.) On April 15, 2010, Petitioner filed a motion for an extension to submit further authority in support of his petition. (Court Doc. 14.) The Court will address each motion separately below.
I. Motion For Leave To File Belated Notice Of Appeal
Petitioner's motion to file a belated notice of appeal consists of one sentence in which Petitioner seeks permission to file a belated appeal. The Court cannot discern the nature of Petitioner's request as a notice of appeal is not a proper filing at this juncture. Accordingly, Petitioner's motion shall be disregarded.
II. Motion For Extension Of Time To File Traverse
Petitioner requests a thirty day extension of time to file a traverse in light of emergency lockdowns at Corcoran State Prison. Petitioner is advised that a traverse is not currently due. In fact, as of this date, there are no pending deadlines as the case is pending review by the Court. If and when, the Court orders Respondent to file a response to the petition, Petitioner may thereafter file a traverse as appropriate. Accordingly, Petitioner's motion for an extension of time shall be disregarded as unnecessary.
III. Motion For Court To Mail Copy To Attorney General
Petitioner requests that this Court provide a copy of his motion for an extension of time to the Attorney General's Office. Petitioner's request must be denied as this Court does not provide copy services to parties in an action, even if he/she is proceeding in forma pauperis. In addition, the Attorney General's Office has not yet been required to make an appearance in this action and therefore the office need not be served with filings at this time.
IV. Motion For Extension Of Time To Submit Further Authority To Support Petition
Petitioner requests an extension of thirty days to research and submit further authority in support of his petition. The Court construes Petitioner's motion as a request to file an amended petition. 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). A Court should freely give leave to amend if justice requires.
In this instance, Respondent has not yet filed a response to the petition, and Petitioner is therefore entitled to file an amended petition as a matter of right. However, Petitioner is advised that the amended petition must be complete within its self without reference to the prior petition. Local Rule 220.
Based on the foregoing, it is HEREBY ORDERED that:
1. Petitioner's motion to file a belated notice of appeal is DISREGARDED;
2. Petitioner's motion for extension of time to file a traverse is DISREGARDED;
3. Petitioner's motion for the Court to mail a copy of motion to Attorney General's Office is DENIED;
4. Petitioner's motion to file an amended petition is GRANTED and Petitioner may file an amended petition within thirty (30) days from the date of service of this order; and
5. The Clerk of Court is directed to send Petitioner a section 2254 form petition.
IT IS SO ORDERED.
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