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Julio Avila v. Anthony Hedgpeth

February 23, 2012

JULIO AVILA, PETITIONER,
v.
ANTHONY HEDGPETH, RESPONDENT.



ORDER

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. On April 13, 2011, an inmate who claims to be assisting petitioner with this action, Demetrius Wright, filed a motion to amend the petition, together with a proposed amended petition containing new, unexhausted claims, and asked that this court stay this action while petitioner exhausts his new claims in state court. See Dckt. No. 19. Petitioner did not sign this pleading. Nor did petitioner sign the proposed amended petition.

On June 6, 2011, an individual who claims to be petitioner's brother, Terry Avila, filed a "motion for next friend standing." See Dckt. No. 25. Terry Avila asks that he be allowed to submit legal filings on petitioner's behalf.

For the following reasons, the court strikes the motion to amend and denies Terry Avila's motion for next friend standing.

I. Motion for Leave to Amend and For Stay and Abeyance

As noted above, an inmate who claims to be assisting petitioner, Demetrius Wright,*fn1 filed a motion for leave to amend petitioner's habeas petition, together with a proposed amended petition, and requested that this court stay and abey this action while petitioner exhausts the new claims in his proposed amended petition in state court. See Dckt. 19.

This court cannot grant Mr. Wright's motion to amend because Mr. Wright is not an attorney and cannot sign pleadings for petitioner. While it is permissible for petitioner to receive assistance from another inmate,*fn2 petitioner must personally sign any motion before filing it with the court. See Fed. R. Civ. P. 11(a); E.D. Cal Local Rule 131(b). Petitioner did not sign this motion or the proposed amended petition.

While petitioner has submitted a declaration to the court attesting that Mr. Wright is his inmate assistant, petitioner has not specifically endorsed the motion to amend or the proposed amended petition. See Dckt. No. 29. Indeed, there is no indication on the docket that petitioner has even seen these documents. Therefore, the motion to amend must be stricken. See Fed. R. Civ. P. 11(a).

As for Mr. Wright's request that this court stay and abey this action while petitioner exhausts his claims in state court, because petitioner has not signed this request, the court cannot consider it. See Dckt. No. 19; See Fed. R. Civ. P. 11(a); E.D. Cal Local Rule 131(b). However, the court notes that the California Supreme Court recently denied petitioner's habeas petition.

See Avila (Julio) on H.C., No. S192050 (Cal. January 4, 2012).*fn3 It appears that petitioner's claims may now be exhausted, and even if the motion for a stay and abeyance were properly filed, it would most likely be denied as moot.

If petitioner wishes to file a motion to amend his petition together with a proposed amended petition including his newly exhausted claims, he is granted 30 days from the date of this order to do so. Petitioner is cautioned that he must comply with all federal and local rules. See Fed. R. Civ. P. 11(a); E.D. Cal Local Rule 131(b) (requiring the signature of the attorney or the party involved in propria persona on all pleadings and non-evidentiary documents); E.D. Cal Local Rule 220 (requiring amended pleading to be complete within itself); E.D. Cal Local Rule 137(c) (requiring proposed amended petition be attached as an exhibit to a motion to amend). The court will send him a copy of the motion to amend and the proposed amended petition that was prepared by Mr. Wright. If he wishes, petitioner can merely sign these documents and refile them with the court (after deleting the request to stay the case).

If necessary, petitioner can ask for an extension of time to submit the motion to amend. If petitioner does not file a motion to amend within 30 days of the date of this order, this action will stand submitted for decision based upon the October 15, 2010 petition, respondent's answer, and the traverse petitioner specifically assented to in his July 20, 2011 declaration.

II. Motion for Next Friend Standing

On June 6, 2011, Terry Avila, who declares he is petitioner's brother, filed a motion for next friend standing, asking that he be allowed to review, sign, and file with the court any motions or pleadings on the petitioner's behalf. See Dckt. No. 25 at 4.

In support of the motion for next friend standing, petitioner's brother declares "while my personal letters would reach [petitioner], he has repeatedly complained to me that the legal documents, referenced in my letters, were not given to him." Dckt. No. 25 at 4. Further, petitioner's brother declares ...


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