Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed his original petition on August 29, 2011, challenging his 2007 conviction in state court on charges of sexual penetration by force and possession of a controlled substance. On December 5, 2011, respondent filed a motion to dismiss this action as barred by the applicable statute of limitations. On March 6, 2012, petitioner filed a first amended petition. In his first amended petition, petitioner no longer seeks to challenge his judgment of conviction. Instead, he claims that his rights to due process and equal protection are being violated because he is not receiving day-for-day time credits to which he is allegedly entitled under a new state law.
In relevant part, a party is entitled to amend a pleading "once as a matter of course within . . . 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Fed. R. Civ. P. 15(a)(1)(B); Rule 12, 28 U.S.C. foll. § 2254. Respondent's motion to dismiss is neither a responsive pleading, see Morrison v. Mahoney, 399 F.3d 1042, 1047 (9th Cir. 2005), nor a motion under Fed. R. Civ. P. 12(b), (e), or (f). Accordingly, petitioner's first amended petition is filed as of right.
As noted above, petitioner's first amended petition does not include a challenge to his underlying conviction. For that reason, respondent's motion to dismiss is mooted by the first amended petition and will accordingly be denied.
Since petitioner may be entitled to relief if the violation of constitutional rights claimed in the first amended petition is proved, respondent will be directed to file a response to the first amended petition.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner's first amended petition (Docket No. 11), is filed as of right;
2. Respondent's motion to dismiss (Docket No. 8) is denied as moot;
3. Respondent is directed to file a response to petitioner's first amended petition within sixty days from the date of this order. See Rule 4, Fed. R. Governing § 2254 Cases. An answer shall be accompanied by all transcripts and other documents relevant to the issues presented in the petition. See Rule 5, Fed. R. Governing § 2254 Cases;
4. If the response to the first amended petition is an answer, petitioner's reply, if any, shall be filed and served within thirty days after service of the answer;
5. If the response to the first amended petition is a motion, petitioner's opposition or statement of non-opposition to the motion shall be filed and served within thirty days after service of the motion, and respondent's reply, if any, shall be filed and served within fourteen days thereafter.
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