Quiroz v. Clark

Filing 57

ORDER signed by Magistrate Judge Gary S. Austin on 5/10/2011 granting 55 Motion to supplement traverse and denying 56 Motion for leave to amend traverse. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JOAQUIN RAMON QUIROZ,

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1:09-CV-01131 AWI GSA HC

Petitioner,

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v.

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ORDER GRANTING PETITIONER’S
MOTION TO SUPPLEMENT TRAVERSE
[Doc. #55]

KENT CLARK,

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Respondent.
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ORDER DENYING PETITIONER’S
MOTION FOR LEAVE TO AMEND
TRAVERSE
[Doc. #56]

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.

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On November 16, 2010, Petitioner filed his traverse in this case. Pursuant to the Court’s
scheduling order of April 8, 2010, briefing was concluded with the filing of the traverse.

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On January 21, 2011, Petitioner filed a motion to supplement his traverse. He seeks leave to

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supplement his arguments pertaining to Ground One of his petition with a new decision issued on

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December 20, 2010, by the California Supreme Court in People v. Albillar, 51 Cal.4th 47 (2010).

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Pursuant to Fed. R. Civ. P. Rule 15(d), on motion, reasonable notice, and just terms, a court may

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allow a party to serve a supplemental pleading setting out any event that happened after the date of

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the pleading to be supplemented. In this case, the decision referenced by Petitioner was rendered one

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month after Petitioner filed his traverse, and Petitioner filed his motion approximately thirty days

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later. The Court finds the parties will not be prejudiced by allowing the supplement. While the

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Court expresses no opinion on the case itself, the supplement will be granted.

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On May 4, 2011, Petitioner filed a motion for leave to amend his traverse. Pursuant to Fed.

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R. Civ. P. Rule 15(c), a party may amend its pleading once as a matter of course within 21 days after

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serving it, or in all other cases, with the court’s leave and when justice so requires. More than 21

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days have passed, so leave of court is required. In this case, the Court finds that the interests of

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justice would not be served by amendment at this late date. The traverse was filed nearly six months

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ago and Petitioner fails to show good cause why the traverse should be amended.

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Accordingly, IT IS HEREBY ORDERED:

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1) Petitioner’s motion to supplement the traverse is GRANTED; and

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2) Petitioner’s motion for leave to amend the traverse is DENIED.

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IT IS SO ORDERED.

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Dated:
6i0kij

May 10, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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