Valencia v. Martel

Filing 51

ORDER Granting in Part and Denying in Part Petitioner's 47 Motion to File a Second Amended Petition; ORDER Deeming the Second Amended Petition to Include the 29 First Amended Petition and the Claims set Forth in Petitioner's Motion to Amend; ORDER Pemitting Respondent to File a Supplemental Response to the Second Amended Petition in Thirty Days; ORDER Dissolving Stay and Directing Petitioner to File a Traverse no Later than Thirty Days after the Filing of any Supplemental Response signed by Magistrate Judge Sheila K. Oberto on 11/05/2012. (Flores, E)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DAVID J. VALENCIA,
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Petitioner,
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v.
CONNIE GIPSON,
Respondent.

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1:11-cv—01066-AWI-SKO-HC
ORDER GRANTING IN PART AND
DENYING IN PART PETITIONER’S
MOTION TO FILE A SECOND AMENDED
PETITION (DOC. 47)
ORDER DEEMING THE SECOND AMENDED
PETITION TO INCLUDE THE FIRST
AMENDED PETITION (DOC. 29) AND
THE CLAIMS SET FORTH IN
PETITIONER’S MOTION TO AMEND
(DOC. 47)

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ORDER PERMITTING RESPONDENT TO
FILE A SUPPLEMENTAL RESPONSE TO
THE SECOND AMENDED PETITION
(DOCS. 29, 47) IN THIRTY (30)
DAYS

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ORDER DISSOLVING STAY (DOC. 49)
AND DIRECTING PETITIONER TO FILE
A TRAVERSE NO LATER THAN THIRTY
(30) DAYS AFTER THE FILING OF ANY
SUPPLEMENTAL RESPONSE

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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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Pending before the Court is Petitioner’s motion for judicial

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notice and motion to amend the pending first amended petition for

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writ of habeas corpus (FAP), which had been filed by Petitioner

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on June 14, 2012.

The Respondent filed an answer to the FAP on

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October 18, 2012.

Respondent has also filed a statement of non-

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opposition to Petitioner’s motion to amend the FAP.

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The Court previously stayed the filing of a traverse pending

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receipt of Respondent’s input with respect to the motion to amend

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the FAP.

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(Doc. 50.)

To the extent that Petitioner seeks this Court to take

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judicial notice of provisions of the Constitution or other

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sources of law, Petitioner’s request is DENIED.

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unnecessary for this Court to take judicial notice of substantive

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legal provisions.

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It is

Insofar as Petitioner moves to amend his FAP to include

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specified claims or grounds for relief, Petitioner’s motion is

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GRANTED.

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Although it is customary to require a petitioner to file an

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entirely new and separate petition when leave to amend is

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granted, in the present case the Respondent does not object to

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the amendment and has already addressed the newly amended claim

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or claims to some extent in the previously filed answer.

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45, 11-13, 20.)

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separate petition document is not necessary.

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(Doc.

It therefore appears that filing a new and

Accordingly, the Court EXERCISES its discretion to permit

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Petitioner’s FAP (doc. 29, filed June 14, 2012), as augmented by

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Petitioner’s motion to amend (doc. 47), to constitute the second

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amended petition (SAP).
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Respondent may FILE supplemental opposition to the SAP no

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later than thirty (30) days after the date of service of this

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order.

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The Court’s order staying the filing of a traverse is
DISSOLVED.

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Petitioner may FILE a traverse no later than thirty (30)

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days after the filing of any supplemental response to the SAP,

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or, if no supplemental response is filed by Respondent, no later

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than thirty (30) days after the date on which any supplemental

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response to the SAP was due to be filed.

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IT IS SO ORDERED.

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Dated:
ie14hj

November 5, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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