Scilagyi v. Cash

Filing 12

ORDER Deeming Petitioner's Petition Filed on August 25, 2011 10 , to be a Supplement to the Initially Filed Petition; ORDER Extending Respondent's Time to File a Response to the Petition to No Later Than November 2, 2011, signed by Magistrate Judge Sheila K. Oberto on 9/5/11. (Gonzalez, R)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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SCOTT S. SCILAGYI,

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Petitioner,

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v.
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B. M. CASH,
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Respondent.
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1:11-cv—01309-SKO-HC
ORDER DEEMING PETITIONER’S
PETITION FILED ON AUGUST 25,
2011, TO BE A SUPPLEMENT TO THE
INITIALLY FILED PETITION
ORDER EXTENDING RESPONDENT’S TIME
TO FILE A RESPONSE TO THE
PETITION TO NO LATER THAN
NOVEMBER 2, 2011

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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 is a document filed on a petition form by Petitioner on

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August 25, 2011, which was docketed as a first amended petition

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for writ of habeas corpus.

Pending before

(Doc. 10.)

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I.

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A petition for a writ of habeas corpus may be amended or

No Requirement of Leave to Amend

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supplemented as provided in the rules of procedure applicable to

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civil actions to the extent that the civil rules are not

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inconsistent with any statutory provisions or the rules governing
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section 2254 cases.

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Governing Section 2254 Cases in the United States District Courts

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(Habeas Rules).

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petitioner to amend the petition.

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680, 696 n.7 (1993).

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to amendments before trial that a party may amend its pleading

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once as a matter of course within twenty-one days after service

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of either the pleading, a required responsive pleading, or a

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motion under Rule 12(b), (e), or (f), whichever is earlier.

28 U.S.C. § 2242; Rule 12 of the Rules

Fed. R. Civ. P. 15(a) may be used to permit the
Withrow v. Williams, 507 U.S.

Fed. R. Civ. P. 15(a) provides with respect

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all other cases, a party may amend its pleading only with the

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opposing party’s written consent or the Court’s leave.

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In

the Court should freely give leave when justice so requires.

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Further,

Because Petitioner’s amendment was filed before any response

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to the petition was filed, Petitioner did not need to obtain

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leave of court in order to file a first amended petition.

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II.

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In the petition filed on August 8, 2011, Petitioner

Deeming Petitioner’s Document to Be a Supplement

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challenged a conviction suffered in 2010 in the Superior Court of

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the State of California, County of Tulare, alleging that due to

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serious mental illness, Petitioner lacked the mental capacity to

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enter a voluntary plea of guilty or nolo contendere and thus

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suffered a violation of due process.

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that his counsel at the trial level rendered ineffective

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assistance in violation of Petitioner’s rights under the Sixth

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Amendment for failure to 1) give adequate advice concerning the

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consequences of the plea, including the possibility of a

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violation of his federal probation; 2) challenge Petitioner’s

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mental capacity, 3) seek review of Petitioner’s competence by a
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Petitioner further contends

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mental health professional, 4) recuse the sentencing judge, 5)

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attempt to obtain a benefit in connection with Petitioner’s

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federal proceedings, and 6) file a notice of appeal.

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Petitioner did not entitle the short, seven-page document

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filed here on August 25, 2011, as a first amended petition;

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however, it does appear on a petition form, and it is signed and

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dated by Petitioner.

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grounds upon which Petitioner purports to seek relief.

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instead appears that the only new information set forth in the

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The document does not set forth claims or
It

document relates to proceedings in federal court.
If a party amends a pleading, the general rule is that the

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new pleading supersedes the original pleading, so the newly filed

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pleading must be complete and stand on its own.

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court approval, Local Rule 220 requires that an amended pleading

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be complete in itself without reference to any prior pleading.

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This is because, as a general rule, an amended complaint

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supersedes the original complaint, which no longer serves any

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function in the case. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967).

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pleading, each claim or ground must be sufficiently alleged.

Absent prior

Therefore, in an amended pleading, as in an original

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A court has inherent power to control its docket and the

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disposition of its cases with economy of time and effort for both

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the court and the parties.

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U.S. 248, 254-255 (1936); Ferdik v. Bonzelet, 963 F.2d 1258, 1260

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(9th Cir. 1992).

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Landis v. North American Co., 299

In this case, the Court DEEMS Petitioner’s amendment filed

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on August 25, 2011, to be a supplement to the initially filed

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petition, and not a free-standing first amended petition in
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itself.

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avoid delay and unnecessary multiplicity of proceedings.

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The Court exercises its discretion in this manner to

Petitioner is INFORMED, however, that additional supplements

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will not necessarily be so construed, and that Petitioner must

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comply with Local Rule 2000 with respect to any further amendment

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of the petition.

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III.

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In view of the supplementation of the petition, the Court on

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Extension of Time to Respond to the Petition

its own motion will consider an extension of time for the filing

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of a response to the petition.

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response to the petition, which now includes the initially filed

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petition and the supplement filed on August 25, 2011, is EXTENDED

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to no later than November 2, 2011.

Respondent’s time to file a

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IT IS SO ORDERED.

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Dated:
ie14hj

September 5, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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