Gonzales v. Gipson

Filing 11

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/29/2013 ORDERING that petitioner's 9 motion to amend is DENIED as unnecessary; the Clerk shall separately docket the proposed amended petition (ECF No. 9 at 8-46) as an "Amended Petition"; petitioner's 5 motion to stay is DENIED as moot; and the Clerk shall serve a copy of this order together with the amended petition on Michal Farrell, Senior Assistant AG. (cc: Michael Farrell) (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RUDY S. GONZALES,

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No. 2:13-cv-1347-EFB P

Petitioner,
v.

ORDER

CONNIE GIPSON,

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Respondent.

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Petitioner is a state prisoner proceeding without counsel seeking a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. He commenced this action with a petition filed on July 5, 2013.

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ECF No. 1. On October 7, 2013, the court directed the Clerk of the Court to serve the petition

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and motion to stay on the Attorney General and ordered that a response be filed within 60 days.

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ECF No. 6.

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Petitioner has filed a motion to stay this action pending a ruling from the California

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Supreme Court on his state court petition. ECF No. 5. He has also filed a motion to amend,

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which includes notice that the California Supreme Court denied his state court petition on

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September 11, 2013. ECF No. 9.

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Rule 15(a)(1) provides that “[a] party may amend its pleading once as a matter of course

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within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is

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required, 21 days after service of a responsive pleading or 21 days after service of a motion under
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Rule 12(b), (e), or (f), whichever is earlier.” Here, petitioner moved to amend his petition before

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any responsive pleading or motion was served. Thus, petitioner may amend his petition “once as

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a matter of course,” without the court’s leave. See Rule 12, Rules Governing Section 2254 Cases.

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Petitioner’s motion to amend is therefore unnecessary.

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In addition, because petitioner represents that the California Supreme Court has issued a
ruling on his state court petition, his motion to stay is now moot.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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2. The Clerk of the Court shall separately docket the proposed amended petition (ECF

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Petitioner’s motion to amend (ECF No. 9) is denied as unnecessary.

No. 9 at 8-46) as an “Amended Petition.”

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3. Petitioner’s motion to stay (ECF No. 5) is denied as moot.

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4. The Clerk of the Court shall serve a copy of this order together with a copy of

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petitioner’s amended petition, with any and all attachments, on Michael Patrick

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Farrell, Senior Assistant Attorney General for the State of California.

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Dated: October 29, 2013.

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