The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On January 18, 2011, the court granted respondent's motion to dismiss. On April 13, 2011, the Ninth Circuit Court of Appeals denied petitioner's request for a certificate of appealability due to petitioner's failure to file a timely notice of appeal.
On April 17, 2012, petitioner filed a motion to amend his petition in conjunction with his request to stay. Petitioner signed this motion on June 10, 2010. Prison officials apparently failed to send this motion to the court at the time it was signed. For the following reasons, petitioner's motion to amend filed April 17, 2012 is denied as moot.
On May 21, 2010, respondents filed a motion to dismiss on grounds that all claims raised in petitioner's original petition were unexhausted. On July 27, 2010, petitioner filed an amended petition seeking to add two new claims: ineffective assistance of counsel and ineffective assistance of appellate counsel. On August 27, 2010, undersigned recommended that respondent's motion to dismiss be granted, finding that the claims raised in the original petition as well as the two new claims raised in the amended petition were not exhausted.
In the April 17, 2012 motion to amend, petitioner states that he is seeking to amend his petition to include an ineffective assistance of counsel claim and an ineffective assistance of appellate counsel claim. It appears that petitioner meant to file the motion to amend with the amended petition filed July 27, 2010. As discussed above, the August 27, 2010 findings and recommendations addressed the July 27, 2010 amended petition. For that reason, the undersigned finds that petitioner's April 17, 2012 motion to amend is moot as the grounds raised in that motion were addressed in the August 27, 2010 findings and recommendations.
Accordingly, IT IS HEREBY ORDERED that the motion to amend filed April 17, 2012 (Dkt. No. 35) is denied as moot.
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