Tillman v. Rios, Jr.

Filing 19

ORDER DENYING Petitioner's 18 Motion for Clarification and Disposition of Motion to Amend; ORDER GRANTING Extension of Time to File Amended Petition, signed by Magistrate Judge Gary S. Austin on 7/7/2011. (Amended Complaint due by 8/10/2011). (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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BENJAMIN TILLMAN,

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Petitioner,

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v.

1:11-CV-00453 GSA HC
ORDER DENYING PETITIONER’S
MOTION FOR CLARIFICATION AND
DISPOSITION OF MOTION TO AMEND
[Doc. #18]

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ORDER GRANTING EXTENSION OF TIME
TO FILE AMENDED PETITION

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H. A. RIOS, JR.,
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Respondent.
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Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2241.
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On May 3, 2011, the undersigned issued an order that denied Petitioner’s motion for
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reconsideration in part, but construed Petitioner’s motion for relief in part as a motion to amend.
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The motion to amend was granted and Petitioner was provided thirty (30) days to file an amended
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petition. Petitioner appealed the Court’s ruling on May 16, 2011, and the Ninth Circuit dismissed
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the appeal on June 28, 2011. See Tillman v. Rios, Case No. 11-16247 (June 28, 2011, 9th Cir.). On

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May 17, 2011, Petitioner filed the instant motion for clarification and disposition of his motion to
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amend. He contends the Court’s order granting him leave to file an amended petition was done in
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U .S. D istrict C ourt
E. D . C alifornia

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bad faith since “clearly [the Court] has everything to be considered for petitioner’s claim and is ripe

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for ruling upon” and “[t]his Court did not have to (stay) Respondent to file a response to Petitioner’s

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amended complaint, because it is already served on Respondent and clearly a part of this Court’s

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Record.” See Pet’r’s Motion at 2. Petitioner’s allegations are not well-taken. A habeas proceeding is

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comprised of three main filings: the Petition, the Answer, and the optional Traverse. The petition

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must be complete in and of itself. See Local Rule 220. If Petitioner wishes to present new claims or

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submit further argument, he cannot do so in a piecemeal fashion by reference to supplemental briefs

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and motions. Id.; Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.1967) (An amended pleading must be

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complete in itself without reference to any prior pleading). In this case, Petitioner stated he desired

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to challenge another incident report and present additional evidence. Insofar as his motion is in fact

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a motion and cannot be considered a complete petition, Petitioner was granted the opportunity,

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consistent with the Local Rules and proper habeas practice and procedure, to file an amended

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petition to include all of his claims and evidence.

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Given Petitioner’s apparent confusion, the Court will grant an additional extension of time to

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file an amended petition. He is advised that the amended petition must be complete in itself and may

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not reference other pleadings; he must reference the instant case number; and he must title the

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pleading “First Amended Petition.”

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Accordingly, IT IS HEREBY ORDERED:

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1) Petitioner’s motion for clarification and disposition of motion to amend is DENIED; and

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2) Petitioner is GRANTED thirty (30) days to file an amended petition.

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IT IS SO ORDERED.

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Dated:
6i0kij

July 7, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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U .S. D istrict C ourt
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