Orozco v. Harrington

Filing 19

ORDER Granting Petitioner's 18 Motion to Amend the Complaint signed by Magistrate Judge Michael J. Seng on 09/27/2011. Amended Complaint due by 10/31/2011. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VALDO C. OROZCO,
Petitioner,

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v.
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KELLY HARRINGTON, Warden,

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Respondent.

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1:10-cv-01599 MJS HC
ORDER GRANTING PETITIONER’S MOTION
TO AMEND THE PETITION
(Doc. 18)
SECOND AMENDED PETITION
WITHIN THIRTY (30) DAYS

DUE

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Petitioner is a state prisoner proceeding pro se and in forma pauperis with an

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application for writ of habeas corpus under 28 U.S.C. § 2254. On January 18, 2011,

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Respondent filed a motion to dismiss, arguing that Petitioner failed to exhaust his claim that

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trial counsel was ineffective (based on counsel’s advise to Petitioner to avoid a probation

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officer's report). On May 23, 2011, the Court denied the motion to dismiss, and granted

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Petitioner’s request to stay the proceeding under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003).

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The Court ordered Petitioner to file a fully exhausted petition within 20 days of the order, which

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Petitioner did on June 12, 2011.

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On August 5, 2011, Petitioner filed a request for judicial notice to inform the Court that

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the California Supreme Court denied his petition containing the exhausted claim, and filed a
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motion to amend the petition to add the newly-exhausted claim to his Federal petition.

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Respondent did not file objections to the motion to amend.

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As Petitioner asserts that he has exhausted his claim in state court, the Court GRANTS

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Petitioner’s motion to amend to allow Petitioner to file a second amended petition containing

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his previously exhausted and newly exhausted claims. The Court cautions Petitioner that Local

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Rule 220 requires that an amended pleading be complete in itself, without reference to any

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prior pleading. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967) (As general rule, an

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amended complaint or petition supersedes the original.).
ORDER

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IT IS THEREFORE ORDERED that Petitioner motion to amend the complaint is

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Granted. Petitioner has thirty (30) days from the entry of this order in which to file a second

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amended petition.

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IT IS SO ORDERED.

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Dated:
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September 27, 2011

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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