United States District Court, E.D. California
KERRY L. LATHAN, Petitioner,
MICHAEL MARTEL, Respondent.
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se, has filed a first amended
application for a writ of habeas corpus pursuant to 28 U.S.C.
Procedural History of First Amended Habeas Corpus
1, 2017 this court screened petitioner's first amended
habeas corpus petition challenging his improper
“R” suffix designation and concluded that the
claims presented were not cognizable on habeas because the
relief he sought would not lead to his speedier release from
custody. ECF No. 8 at 2-3. The court also noted
petitioner's pending civil rights lawsuit in Lathan
v. CDCR, 2:16-cv-0757 TLN CMK P, which raises the same
challenges to his “R” suffix designation.
Id. at 2. As a result, the undersigned recommended
summarily dismissing petitioner's first amended habeas
these findings and recommendations were pending, petitioner
filed what the Ninth Circuit Court of Appeals liberally
construed as an application for leave to file a second or
successive 28 U.S.C. § 2254 petition. See ECF
No. 11. Since his first amended habeas petition was still
pending before this court, the Ninth Circuit denied the
application as unnecessary. The Court of Appeal transferred
the matter to this court with instructions that
petitioner's application be processed as a motion to
amend his currently pending habeas petition. Accordingly,
petitioner's motion to amend was filed in this court on
June 28, 2017. ECF No. 12. In light of these recent events,
the court will vacate its June 1, 2017 findings and
recommendations and rule on the pending motion to amend.
Motion to Amend First Amended Habeas Corpus Petition
petitions “may be amended or supplemented as provided
in the rules of procedure applicable to civil actions.”
28 U.S.C. § 2242. Under Rule 15(a) of the Federal Rules
of Civil Procedure, a party may amend its pleading once as a
matter of right within 21 days after serving it. Whether to
grant leave to amend rests in the sound discretion of the
trial court. See Bonin v. Calderon, 59 F.3d 815, 845
(9th Cir.1995) (citing Outdoor Sys., Inc. v. City of
Mesa, 997 F.2d 604, 614 (9th Cir.1993)). “In
exercising its discretion ‘a court must be guided by
the underlying purpose of Rule 15-to facilitate decision on
the merits rather than on the pleadings or
technicalities.'” DCD Programs, Ltd. v.
Leighton, 833 F.2d 183, 186 (9th Cir.1987) (quoting
United States v. Webb, 655 F.2d 977, 979 (9th Cir.
commenced the present action by filing “a document
seeking to appeal a decision of the California Supreme
Court.” ECF No. 3. In response, the court provided
petitioner additional time to file an initial federal habeas
petition on the court approved form. Id. In this
order, the court made clear that it would not “issue
any orders granting or denying relief until an action has
been properly commenced.” Id.
the initial federal habeas petition was received by the
court, it was automatically docketed as a “First
Amended Habeas Corpus Petition.” ECF No. 6. However,
based on this procedural history, the court will not construe
the first amended habeas petition as petitioner's amended
pleading as a matter of course. See Fed.R.Civ.P.
15(a)(1). So construed, the undersigned will grant
petitioner's pending motion to amend since the initial
petition has not been served on respondent. Id.
Plain Language Summary for Pro Se Party
court is no longer recommending that your current habeas
petition be dismissed. Instead, you are being given another
chance to file a federal habeas petition that contains any
challenges to your 2015 parole denial. This decision does not
affect the claims challenging your “R” suffix
label which are still pending in Lathan v. CDCR,
2:16-cv-0757 TLN CMK P.
take any of the following actions in response to this order:
1) fill out the enclosed 28 U.S.C. § 2254 form with any
claims challenging your 2015 parole denial and return it to
the court; or, 2) do not complete the enclosed form if you do
not want the federal court to review the parole board's
IT IS HEREBY ORDERED that:
1. The court's June 1, 2017 findings and recommendations,
ECF No. ...