United States District Court, E.D. California
GRANTING IN PART RESPONDENT'S REQUEST FOR DISCHARGE OF
ORDER REGARDING ORIGINAL PETITION AND REQUEST FOR SCREENING
OF AMENDED PETITION ORDER DISCHARGING ORDER TO FILE RESPONSE
TO PETITION ORDER GRANTING PETITIONER LEAVE TO AMEND ORDER
DIRECTING CLERK OF COURT TO SEND PETITIONER BLANK § 2254
FORMS (ECF NOS. 6, 15)
is a state prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
23, 2019, Petitioner filed a federal petition for writ of
habeas corpus challenging his 2014 Fresno County conviction
for first-degree murder on the grounds that: (1) the trial
court prejudicially erred by failing to sua sponte instruct
on the lesser-included offense of attempted murder; and (2)
the appellate court erred in affirming the judgment with
respect to the lesser-included offense instruction. (ECF No.
1). On May 28, 2019, the Court ordered Respondent to file a
response to the petition. (ECF No. 6).
15, 2019, Petitioner filed a document entitled
“Memorandum of Points and Authorities in Support of
Answer to Order to Show Cause.” (ECF No. 11). Therein,
Petitioner includes the following additional claims for
habeas relief: (1) erroneous admission of prejudicial
photographs; (2) prosecutorial misconduct; (3) erroneous
admission of prejudicial predisposition evidence; (4)
ineffective assistance of counsel; and (5) cumulative effects
of errors. (ECF No. 11 at 2-3).
30, 2019, the Court granted Respondent's motion for
extension of time to file an answer. (ECF Nos. 12, 13). On
August 26, 2019, Respondent filed the instant request to: (1)
discharge the order to respond to the original petition; (2)
deem Petitioner's memorandum a proposed first amended
petition and request to amend; and (3) screen the first
amended petition and issue a new order to respond as
appropriate. (ECF No. 15).
that Petitioner's memorandum raises additional claims for
habeas relief that were not included in the original
petition, the Court construes the memorandum as a motion to
amend the petition. See Erickson v. Pardus, 551 U.S.
89, 94 (2007) (“A document filed pro se is
‘to be liberally construed.'”); Castro v.
United States, 540 U.S. 375, 381-82 (2003) (finding
courts may recharacterize a pro se motion to “create a
better correspondence between the substance of a pro se
motion's claim and its underlying legal basis”);
Woods v. Carey, 525 F.3d 886 (9th Cir. 2008)
(holding that when a pro se petitioner files a new petition
while an earlier petition is still pending, the district
court should construe the new petition as a motion to amend
the pending petition).
party may amend its pleading once as a matter of course
within: (A) 21 days after serving it, or (B) if the pleading
is one to which a responsive pleading is required, 21 days
after service of a responsive pleading.” Fed.R.Civ.P.
15(a)(1). The Ninth Circuit has held that “Federal Rule
of Civil Procedure 15(a), which allows litigants to amend
their pleadings once ‘as a matter of course' before
a responsive pleading has been filed, applies to habeas
corpus actions.” Anthony v. Cambra, 236 F.3d
568, 574 (9th Cir. 2000). No. responsive pleading has been
filed yet in the instant case, and thus, Petitioner is
entitled to amend his pleading once as a matter of course.
requests that the Court construe the memorandum not only as a
motion to amend but also as a proposed first amended
petition. (ECF No. 15 at 2). However, Rule 2(c)(5) of the
Rules Governing Section 2254 Cases states that a petition
must “be signed under penalty of perjury by the
petitioner.” Rule 2(d) further provides that
“[t]he petition must substantially follow either the
form appended to these rules or a form prescribed by a local
district-court rule.” Here, although Petitioner signed
the proof of service under penalty of perjury, Petitioner did
not sign the memorandum under penalty of perjury as required
by Rule 2(c)(5).
on the foregoing, the Court will construe Petitioner's
memorandum as a motion to amend the petition but not as a
proposed first amended petition.