Bolton v. McEwen

Filing 29

ORDER signed by Magistrate Judge Carolyn K. Delaney on 02/18/15 ordering respondent's motion to dismiss 23 is denied without prejudice to renewal. Petitioner's motion to amend 26 is granted. This action shall proceed on the Second Amended Petition 27 . Respondent is directed to file a response to petitioner's amended habeas petition within 30 days from the date of this order. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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D’ARSEY L. BOLTON,

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No. 2:14-cv-0803 GEB CKD P

Petitioner,
v.

ORDER

SCOTT McEWEN,
Respondent.

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On January 8, 2015, respondent moved to dismiss petitioner’s First Amended Petition for

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 23.) One month later, after

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litigating this action pro se, petitioner obtained counsel. (ECF No. 28.)

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Before the court is petitioner’s motion to amend the petition, accompanied by a proposed

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Second Amended Petition. (ECF Nos. 26, 27.) Petitioner, through counsel, argues that

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petitioner’s claims have so far been presented in a “piecemeal, disjoined, confusing manner,” and

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the proposed Second Amended Petition presents a “coherent, understandable version” of these

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claims. (ECF No. 26.)

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The operative First Amended Petition raises four claims: (1) Denial of effective assistance

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of counsel; (2) conviction obtained by the unconstitutional failure of the prosecution to disclose

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evidence favorable to the defense; (3) perjury; and (4) sentence greater than legislature intended.

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(ECF No. 22 at 4-5.) Respondent has moved to dismiss the petition on the grounds that it is both
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untimely and “mixed,” as one claim is allegedly unexhausted. (ECF No. 23.)
The proposed Second Amended Petition raises two claims: ineffective assistance and

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prosecutorial misconduct with respect to missing evidence. (ECF No. 27.) Both are presented

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more fully and coherently than in the operative petition.

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Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend shall be given

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freely when justice requires. In deciding whether justice requires granting leave to amend, factors

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to be considered include the presence or absence of undue delay, bad faith, dilatory motive,

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repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing

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party, and futility of proposed amendment. Based on the foregoing factors, the undersigned

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concludes that justice requires leave to amend in this instance.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Respondent’s motion to dismiss (ECF No. 23) is denied without prejudice to renewal;

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2. Petitioner’s motion to amend (ECF No. 26) is granted;

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3. This action shall proceed on the Second Amended Petition (ECF No. 27);

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4. Respondent is directed to file a response to petitioner’s amended habeas petition within

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30 days from the date of this order. See Rule 4, 28 U.S.C. foll. § 2254.

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Dated: February 18, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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2/bolt0803.amend

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