Down v. Haviland

Filing 28

ORDER signed by Magistrate Judge Edmund F. Brennan on 3/7/13 ORDERING that petitioners December 28, 2012 motion, Dckt. No. 27 , is DENIED without prejudice to filing a motion to amend the petition; Petitioner may file a motion to amend the pet ition within 30 days of the date of this order; and should petitioner decline to file a motion to amend the petition within 30 days, the matter will stand submitted for decision on the claims in the October 7, 2009 petition currently pending before the court.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EARL HENRY DOWN,

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Petitioner,

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No. 2:09-cv-2794 MCE EFB P

vs.
J. HAVILAND, et al.,
Respondents.

ORDER
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Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to

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28 U.S.C. § 2254. On December 28, 2012, petitioner filed a document entitled “Petition to

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Supplement Ancillary Expanded Subject Matter to Existing Petition for Writ of Habeas Corpus.”

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Dckt. No. 27. In the document petitioner explains that he wishes to expand on “issues already in

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litigation” and that the motion “is not meant to introduce new issues.” Id. at 1.

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The motion alleges that the Board of Parole Hearings violated his right to due process by

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disregarding the matrix guidelines and failing to consider petitioner’s good time credits. Id. at 1-

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2. Petitioner claims that this conduct “has resulted in detention disproportionate to Petitioner’s

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sentence” and amounts to a violation of “the Separation of Powers Doctrine.” Id. at 2. While

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petitioner’s habeas petition contains a claim that the BPH violates the Separation of Powers

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Doctrine by assuming sentencing function of a court, the petition contains no allegations
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concerning the BPH’s use of the matrix guidelines or failure to consider petitioner’s good time

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credits. See Dckt. No. 1. The pending motion’s reference to a violation of the “Separation of

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Powers Doctrine” appears to be nothing more than an attempt to tie the newly asserted

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allegations to a claim asserted in this petition.

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Contrary to petitioner’s representation, through the instant motion petitioner attempt to

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assert a new claim for relief. However, petitioner must amend his petition to assert a new claim.

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Because more than 21 days have passed since the date respondent filed an answer to the petition,

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petitioner may amend the petition only with respondents’ written consent or the court’s leave.

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Fed. R. Civ. P. 15(a)(2); Rule 12, Rules Governing Section 2254 Cases. There is no indication

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that respondent has given written consent, and petition has not sought leave from the court to

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amend his petition.

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Furthermore, the instant motion cannot properly be construed as a request to amend the
petition, as it does not comply with the court’s local rules. Local Rule 220 provides:
Unless prior approval to the contrary is obtained from the Court, every pleading
to which an amendment or supplement is permitted as a matter of right or has
been allowed by Court order shall be retyped and filed so that it is complete in
itself without reference to the prior or superseded pleading.

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Here, the pending motion only contains a single new claim and does not include the

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claims asserted in the original petition. It is clear from the instant motion that petitioner does not

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wish to abandon his pending claims, but merely wishes to augment his petition. Furthermore,

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petitioner has not filed a proposed amended petition as required when seeking leave to amend.

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E.D. Cal. Local Rule 137(c).

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As petitioner has not requested leave of court to amend his petition, the instant motion

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will be denied. The denial is without prejudice to petitioner filing a motion to amend his

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petition. If petitioner decides to seek amendment, he is admonished that he must demonstrate

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that any new claims have been properly exhausted by presenting them to the California Supreme

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Court or that state remedies are no longer available. He must also assert all new claims within
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the one-year statutory period provided by 28 U.S.C. § 2244(d)(1). Further, any motion to amend

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must be accompanied by a proposed amended petition that is complete in itself without reference

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to any prior petition. However, should petitioner decline to seek amendment, the matter will

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stand submitted for decision on the claims currently before the court.

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Accordingly, it is hereby ORDERED that:

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1. Petitioner’s December 28, 2012 motion, Dckt. No. 27, is denied without prejudice to

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filing a motion to amend the petition;
2. Petitioner may file a motion to amend the petition within 30 days of the date of this
order; and
3. Should petitioner decline to file a motion to amend the petition within 30 days, the

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matter will stand submitted for decision on the claims in the October 7, 2009 petition currently

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pending before the court.

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DATED: March 7, 2013.

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