UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
August 17, 2010
ROBERTO JOSE LEBRON, PETITIONER,
JAMES A. YATES, RESPONDENT.
The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER GRANTING PETITIONER'S MOTION TO AMEND PETITION AND DIRECTING CLERK OF COURT TO FILE AMENDED PETITION LODGED ON AUGUST 6, 2010
[Docs. 18, 19]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner consented to the jurisdiction of the United States Magistrate Judge. Local Rule 305(b).
On July 2, 2010, the Court granted Petitioner's motion for relief from judgment and granted Petitioner thirty days to comply with the Court's April 21, 2010, Order to Show Cause. On August 6, 2010, Petitioner filed a motion to amend the petition, along with the amended petition which was lodged by the Court.
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). While the Court should freely give leave to amend if justice requires, the Court may deny leave to amend if the amendment would be futile or subject to dismissal. Bonn, 59 F.3d at 845; Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991).
In this instance, Respondent has not yet filed a response and Petitioner is entitled to amend the petition "as a matter of course" without leave of Court. Accordingly, Petitioner's motion to amend the petition is GRANTED and the Clerk of Court will be directed to file the amended petition which will become the operative pleading in this case.
IT IS SO ORDERED.
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