Garduno v. McDonald

Filing 31

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/3/2012 DENYING petitioner's 27 motion to amend. (Yin, K)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 STEVEN L. GARDUNO, 11 Petitioner, 12 13 No. CIV S-11-0469 CKD P vs. MIKE D. MCDONALD, 14 Respondent. 15 ORDER / 16 Petitioner is a state prisoner proceeding pro se with an application for writ of 17 habeas corpus under 28 U.S.C. § 2254. This action proceeds on the First Amended Petition filed 18 April 4, 2011. (Dkt. No. 7.) Respondent has filed an answer and petitioner has filed a traverse. 19 (Dkt. Nos. 14, 23.) Pending is petitioner’s January 3, 2012 motion for leave to file a Second 20 Amended Petition. (Dkt. No. 27.) Respondent has filed an opposition to the motion. (Dkt. No. 21 30.) 22 Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend shall be 23 given freely when justice requires. In deciding whether justice requires granting leave to amend, 24 factors to be considered include the presence or absence of undue delay, bad faith, dilatory 25 motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to the 26 opposing party and futility of the proposed amendment. Forman v. Davis, 371 U.S. 178, 182 1 1 (1962). 2 Here, the First Amended Petition challenging petitioner’s 2009 conviction is fully 3 briefed, and petitioner seeks to add seven new claims challenging this same conviction. He 4 asserts that such amendment is “necessary to clarify the totality of his claims” regarding the 2009 5 conviction. It is not clear why petitioner failed to include these claims in the First Amended 6 Petition. The court does not find that justice requires leave to amend in these circumstances and 7 will deny petitioner’s motion to amend. This case will proceed on the First Amended Petition. 8 9 10 Accordingly, IT IS HEREBY ORDERED THAT petitioner’s January 3, 2012 motion to amend (Dkt. No. 27) is denied. Dated: April 3, 2012 11 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 12 13 14 15 2 gard0469.amend 16 17 18 19 20 21 22 23 24 25 26 2

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