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David J. Valencia v. Connie Gipson

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


November 5, 2012

DAVID J. VALENCIA,
PETITIONER,
v.
CONNIE GIPSON,
RESPONDENT.

The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER GRANTING IN PART AND DENYING IN PART PETITIONER'S ) MOTION TO FILE A SECOND AMENDED PETITION (DOC. 47) ORDER DEEMING THE SECOND AMENDED PETITION TO INCLUDE THE FIRST AMENDED PETITION (DOC. 29) AND THE CLAIMS SET FORTH IN PETITIONER'S MOTION TO AMEND (DOC. 47)

ORDER PERMITTING RESPONDENT TO FILE A SUPPLEMENTAL RESPONSE TO THE SECOND AMENDED PETITION (DOCS. 29, 47) IN THIRTY (30) DAYS ORDER DISSOLVING STAY (DOC. 49) AND DIRECTING PETITIONER TO FILE A TRAVERSE NO LATER THAN THIRTY (30) DAYS AFTER THE FILING OF ANY SUPPLEMENTAL RESPONSE

Petitioner is a state prisoner proceeding pro se 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 judicial notice and motion to amend the pending first amended petition for writ of habeas corpus (FAP), which had been filed by Petitioner on June 14, 2012. The Respondent filed an answer to the FAP on October 18, 2012. Respondent has also filed a statement of non-opposition to Petitioner's motion to amend the FAP. (Doc. 50.) The Court previously stayed the filing of a traverse pending receipt of Respondent's input with respect to the motion to amend the FAP.

To the extent that Petitioner seeks this Court to take judicial notice of provisions of the Constitution or other sources of law, Petitioner's request is DENIED. It is unnecessary for this Court to take judicial notice of substantive legal provisions.

Insofar as Petitioner moves to amend his FAP to include specified claims or grounds for relief, Petitioner's motion is GRANTED.

Although it is customary to require a petitioner to file an entirely new and separate petition when leave to amend is granted, in the present case the Respondent does not object to the amendment and has already addressed the newly amended claim or claims to some extent in the previously filed answer. (Doc. 45, 11-13, 20.) It therefore appears that filing a new and separate petition document is not necessary.

Accordingly, the Court EXERCISES its discretion to permit Petitioner's FAP (doc. 29, filed June 14, 2012), as augmented by Petitioner's motion to amend (doc. 47), to constitute the second amended petition (SAP).

Respondent may FILE supplemental opposition to the SAP no later than thirty (30) days after the date of service of this order.

The Court's order staying the filing of a traverse is DISSOLVED.

Petitioner may FILE a traverse no later than thirty (30) days after the filing of any supplemental response to the SAP, or, if no supplemental response is filed by Respondent, no later than thirty (30) days after the date on which any supplemental response to the SAP was due to be filed.

IT IS SO ORDERED.

20121105

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