Valencia v. Martel

Filing 35

ORDER Striking Petitioner's Notices (Docs. 30 , 34 ), signed by Magistrate Judge Sheila K. Oberto on 7/16/2012. (Fahrney, E)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DAVID J. VALENCIA, JR.,

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Petitioner,

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v.
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DIRECTOR OF CORRECTIONS AND
REHABILITATION,

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Respondent.

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) 1:11-cv—01066-AWI-SKO-HC
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) ORDER STRIKING PETITIONER’S
) NOTICES (DOCS. 30, 34)
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Petitioner is a state prisoner proceeding pro se with a
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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
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The matter has been referred to the Magistrate Judge pursuant to
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28 U.S.C.§ 636(b)(1) and Local Rules 302 and 303.
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The Court has previously directed Respondent to file a
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response to the first amended petition (FAP), which was filed on
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June 14, 2012.

Pending before the Court are two documents

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concerning notice or judicial notice filed by Petitioner on June
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28, 2012, and July 13, 2012, respectively.

(Docs. 30, 34.)

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In the notices, which were filed after the FAP was filed,
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Petitioner refers to claims he has made in the FAP.
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The FAP is

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before the Court because it was filed and docketed in this

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action.

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of various facts by the pertinent rules of court, there is no

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need for the Court to take judicial notice of matters that are

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set forth in the Petitioner’s FAP.

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Although the Court is authorized to take judicial notice

Further, if Petitioner is attempting to amend the terms of

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the FAP, Petitioner is informed that an amended petition must be

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set forth in a separate document.

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cannot be accomplished by means of judicial notice.

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An amendment of the petition

To the extent that Petitioner is attempting to set forth

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legal argument in these notices, Petitioner will have an

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opportunity to set forth legal arguments in response to whatever

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document Respondent files in response to the FAP.

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Fed. R. Civ. P. 12(f) provides as follows:

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The Court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent,
or scandalous matter. The court may act:

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1) on its own; or

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2) on motion made by a party either before
responding to the pleading or, if a response
is not allowed, within 21 days after being
served with the pleading.

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A court may strike a document that does not conform to the formal
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requirements of the pertinent rules of court.

Transamerican

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Corp. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 143
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F.R.D. 189, 191 (N.D. Ill. 1992).

The authorized pleadings in a

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habeas corpus proceeding are the petition, the answer or any
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authorized motion filed in response to the petition, and any
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reply thereto.

Rules 1-5 of the Rules Governing Section 2254

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Cases in the United States District Courts (Habeas Rules).
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Here, the Court is awaiting the Respondent’s response to the

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petition.

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granted, permission to amend the petition or to submit additional

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documents in support of the petition.

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Petitioner has not sought, and the Court has not

Accordingly, it is ORDERED that Petitioner’s notices (docs.
30, 34) be STRICKEN from the docket as inappropriately filed.

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IT IS SO ORDERED.

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Dated:
ie14hj

July 16, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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