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Gil v. Yates

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


May 26, 2010

FRANCISCO GIL, PETITIONER,
v.
JAMES A. YATES, RESPONDENT.

The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER REGARDING PETITION FOR WRIT OF HABEAS CORPUS, GRANTING MOTION TO FILE SUPPLEMENTAL PETITION, GRANTING LEAVE TO FILE SECOND AMENDED PETITION AND DIRECTING CLERK OF COURT TO SEND BLANK § 2254 FORM PETITION [Docs. 1, 9]

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 September 28, 2009. (Court Doc. 1.) On February 26, 2009, Petitioner filed an amended petition. (Court Doc. 9.) The Court will address both petitions in the instant order.

DISCUSSION

Rule 2 of the "Rules Governing Section 2254 Cases" provides that the petition "... must specify all the grounds for relief available to the petitioner; state the facts supporting each ground; state the relief requested..." Rule 2 of the Rules Governing 2254 Cases. Rule 2 further provides that the petition "must substantially follow either the form appended to these rules or a form prescribed by a local district-court rule. The clerk must make forms available to petitioners without charge." Id. at 2(d).

Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990).

From the initial petition, it appears that Petitioner is challenging a January 24, 2007, California Department of Corrections and Rehabilitation Rules Violation Report for unauthorized possession of controlled medication. (Court Doc. 1, pp. 1, 4.) Petitioner contends that he was improperly assessed with a 121 day credit forfeiture and that under prevailing law he should not have been assessed with a credit forfeiture of more than 30 days. (Id.) This original petition used a standard form as required by Rule 4 of the Rules Governing 2254 Cases.

Petitioner's amended petition appears to raise exactly the same claim in the same way but it does not use the standard form required for petitions for writs of habeas corpus. (Court Doc. 9.)

Petitioner's amended petition supercedes his original petition, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be "complete in itself without reference to the prior or superceded pleading." Local Rule 220. "[a]ll causes of action alleged in an original complaint which are not alleged in an amended complaint are waived." King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)).

The amended petition omits significant pleadings and attachments associated with the original petition. The court will grant Petitioner leave to determine the pleadings and attachments he wishes to include in the instant petition.

Accordingly, it is HEREBY ORDERED that:

1. Petitioner is GRANTED thirty (30) days from the date of service of this Order to SUBMIT a SECOND AMENDED PETITION. The amended petition should be clearly and boldly titled "SECOND AMENDED PETITION," contain the appropriate case number, and be an original signed under penalty of perjury;

2. The Clerk of Court is DIRECTED to send Petitioner a blank form petition for petitioners filing pursuant to 28 U.S.C. § 2254; and,

3. Petitioner is forewarned that his failure to comply with this order may result in a Recommendation that the petition be dismissed pursuant to Local Rule 110.

IT IS SO ORDERED.

20100526

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