UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
February 16, 2012
MATTHEW CATE, SECRETARY OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, RESPONDENT.
The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER GRANTING PETITIONER'S MOTION TO FILE A FIRST AMENDED
PETITION NO LATER THAN NINETY (90) DAYS AFTER THE DATE
OF SERVICE OF THIS ORDER (DOC. 22)
ORDER SETTING NEW BRIEFING SCHEDULE
ORDER DISMISSING RESPONDENT'S
MOTION FOR AN EXTENSION OF TIME AS MOOT (DOC. 25)
Petitioner is a state prisoner who is proceeding with counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 302 and 303. Pending before the Court is Petitioner's motion for leave to file a first amended petition for writ of habeas corpus in ninety (90) days, which was filed on February 6, 2012.
Respondent, who has been in the process of preparing a response to the petition, filed a response to the motion on February 8, 2012, acknowledging that Petitioner had a right pursuant to Fed. R. Civ. P. 15(a) to file an amended petition after the filing of a response. (Doc. 24.) Respondent requested a new briefing schedule to permit a response to any additional claims in the amended petition.
A petition for a writ of habeas corpus may be amended or supplemented as provided in the rules of procedure applicable to civil actions to the extent that the civil rules are not inconsistent with any statutory provisions or the rules governing section 2254 cases. 28 U.S.C. § 2242; Rule 12 of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules). Fed. R. Civ. P. 15(a) may be used to permit the petitioner to amend the petition. Withrow v. Williams, 507 U.S. 680, 696 n.7 (1993). Fed. R. Civ. P. 15(a) provides with respect to amendments before trial that a party may amend its pleading once as a matter of course within twenty-one days after service of either the pleading, a required responsive pleading, or a motion under Rule 12(b), (e), or (f), whichever is earlier; in all other cases, a party may amend its pleading only with the opposing party's written consent or the Court's leave. Further, the Court should freely give leave when justice so requires.
Here, the motion to amend is unopposed, and the period of time requested is reasonable in light of the recent substitution of counsel. Respondent's request for a briefing schedule will be granted to avoid further delay and to facilitate the process of readying the case for decision.
Accordingly, it is ORDERED that Petitioner's motion for leave to file a first amended petition is GRANTED. Petitioner may file a first amended petition no later than ninety (90) days after the date of service of this order.
The briefing schedule previously set forth in the Court's order of December 13, 2011, remains unchanged insofar as it sets time limits for opposing and replying to a motion to dismiss. Otherwise, it is hereby MODIFIED as follows: Respondent may file a response to the first amended petition no later than forty-five (45) days after the date of service of the first amended petition. If an answer is filed, Petitioner may file a traverse no later than thirty (30) days after the date of service of the answer.
In view of this order, Respondent's motion for an extension of time to respond to the petition, filed on February 13, 2012, is DISMISSED as moot.
IT IS SO ORDERED.
© 1992-2012 VersusLaw Inc.