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Victor H. Wyatt v. Michael Mcdonald

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


February 28, 2011

VICTOR H. WYATT, PETITIONER,
v.
MICHAEL MCDONALD, RESPONDENT.

ORDER

On July 31, 2009, petitioner, proceeding without counsel, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, raising one claim of jury instruction error. Respondent filed an answer on September 1, 2010. On January 25, 2011, this court issued findings and recommendations recommending that the habeas petition be denied. On February 15, 2011, petitioner, now proceeding through counsel, filed objections to the January 25, 2011 findings and recommendations.*fn1 In those objections, counsel for petitioner does not address the substance of the findings and recommendations but explains that she now wishes to pursue additional habeas claims on petitioner's behalf. Along with those objections, counsel for petitioner filed an "amended petition for writ of habeas corpus." (Doc. No. 30.) Therein, petitioner raises five claims of ineffective assistance of trial counsel, one claim of ineffective assistance of appellate counsel, one claim of racial discrimination in the "jury selection process" in Butte County, one claim of "unreasonable search and seizure," and one claim of "prosecutorial and police misconduct." (Id.)

No substitution

Once an answer has been filed, a party may amend a pleading only by leave of court or by written consent of the adverse party. See Fed. R. Civ. P. 15(a).*fn2 Although an answer has been filed in this matter, petitioner has filed neither a motion to amend nor a stipulation to file an amended habeas corpus petition. Petitioner's amended petition will therefore be stricken, and this action will proceed on the petition filed on July 31, 2009.*fn3

Accordingly, IT IS ORDERED that the amended petition filed on February 15, 2011 (doc. # 30) is stricken.

DAD:8 wyatt2122.o


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