Garduno v. McDonald

Filing 26

ORDER signed by Magistrate Judge Carolyn K. Delaney on 12/6/2011 ORDERING that the 24 second amended petition is STRICKEN due to petitioner's failure to obtain leave to amend; plaintiff may file a motion to amend no later than 30 days; respondent may file a response to any such motion to amend no later than 30 days after the motion is filed; and petitioner's 25 motion to stay the second amended petition is DENIED as inapposite, without prejudice. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEVEN LAWRENCE GARDUNO,

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Petitioner,

No. CIV S-11-0469 CKD P

vs.
MIKE D. MCDONALD,
Respondent.

ORDER
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This federal habeas action is proceeding on the first amended petition (hereinafter

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“FAP”) in which petitioner challenges his 2009 conviction for assault with a firearm and

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possession of a firearm by a felon. Respondent filed an answer to the FAP on June 28, 2011, and

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petitioner filed a traverse on September 16, 2011. (Dkt. Nos. 14, 23.)

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Complicating matters, petitioner on July 13, 2011 filed another habeas petition

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challenging his 2009 conviction and sentence, which originated a new action, Garduno v.

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McDonald, CIV S-11-1835 CKD P (E.D. Cal.) (“Garduno II”). On October 25, 2011, noting that

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petitioner had two active habeas cases challenging the same conviction, this court ordered that

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the petition in Garduno II be re-filed as an “amended petition” in the instant case and ordered that

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Garduno II be closed. (Garduno II, Dkt. No. 9.) Thus, the Garduno II petition is now labeled a

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Second Amended Petition in the instant action. (Dkt. No. 24.)

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The court also transferred petitioner’s September 14, 2011 motion to stay certain

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claims in his Garduno II petition in order to exhaust state remedies as to those claims. (Id.) That

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motion is now Docket No. 25 in the instant action.

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Nothing in the court’s order transferring the Garduno II petition gave petitioner

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leave to proceed on the Second Amended Petition in the instant action. Habeas corpus petitions

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may be amended as provided in the rules of procedure applicable to civil actions. 28 U.S.C. §

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2242. The Federal Rules of Civil Procedure provide that a party may amend his or her pleading

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“once as a matter of course within: (A) 21 days after serving it, or (B) . . . 21 days after service of

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a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever

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is earlier.” Fed. R. Civ. P. 15(a). “In all other cases, a party may amend its pleading only with

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the opposing party’s written consent or the court’s leave. The court should freely give leave

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where justice so requires.” Id.; see also E.D. Local Rule 220 (emphasis added). Although the

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allegations of a pro se complaint are held to “less stringent standards than formal pleadings

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drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam), plaintiff is

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required to comply with the Federal Rules of Civil Procedure and the Local Rules of the Eastern

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District of California.

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Here, petitioner filed a July 13, 2011 petition challenging his 2009 conviction and

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sentence more than 21 days after the FAP was served on respondent. (See Dkt. No. 8.)

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Petitioner has not secured respondent’s written consent for filing a Second Amended Petition;

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nor has he sought the court’s leave as required by the federal rules. Accordingly, the court will

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strike the Second Amended Petition, and this action will continue to proceed on the FAP.

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Should petitioner wish to seek the court’s leave to proceed on the Second Amended Petition, the

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court will grant him 30 days to file a motion for leave to amend. Respondent will be granted an

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additional 30 days to respond to any such motion.

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Because petitioner’s September 14, 2011 motion to stay does not apply to any
operative petition, the court will deny that motion as inapposite. However, petitioner will not be

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prejudiced from renewing the motion to stay if, at some future date, this action proceeds on the

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Second Amended Petition.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Second Amended Petition filed on July 13, 2011 and transferred to this

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action on October 25, 2011 (Dkt. No. 24) is stricken due to petitioner’s failure to obtain leave to

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amend;

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2. Plaintiff may file a motion to amend no later than 30 days after issuance of this
order;

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3. Respondent may file a response to any such motion to amend no later than 30
days after the motion is filed; and

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4. Petitioner’s September 14, 2011 motion to stay the Second Amended Petition

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(Dkt. No. 25) is denied as inapposite, without prejudice to renewal if and when this action

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proceeds on the Second Amended Petition.

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Dated: December 6, 2011

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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