White v. Davey

Filing 26

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/27/15. If petitioner wishes to pursue all four of his claims, that is, those raised in the original petition and the first amended petition, he must file a second amended petition that inclu des all four of his claims within 30 days of the date of this order. If petitioner does not file a second amended petition within 30 days, the court will direct respondent to file a response to the first amended petition, which only includes the claim for prosecutorial misconduct, and abandons the three claims raised in the original petition.(Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANDREW L. WHITE,

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No. 2:14-cv-1427-EFB P

Petitioner,

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v.

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DAVE DAVEY,

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ORDER

Respondent.

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Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. His original petition raised three claims for relief: (1) that

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he was denied the right to confront and cross examine an “accuser” in violation of the Sixth

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Amendment; (2) that he was denied his Fourteenth Amendment right to a fair trial because

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photographs that should have been excluded under California Evidence Code section 352 were

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admitted and used against him; and (3) that the trial court judge erred in ruling that the prosecutor

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had used due diligence in attempting to procure the attendance of a “victim/witness” at

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petitioner’s trial. ECF No. 1 at 7-8. The court subsequently granted petitioner’s motion to amend

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to add a claim based on prosecutorial misconduct and noted that any amended petition must be

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complete in itself. ECF No. 24. Petitioner responded by filing a “first amended petition” but

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alleging only a prosecutorial misconduct claim. ECF No. 25.

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An amended petition supersedes any earlier filed petition, and once an amended petition is

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filed, the earlier filed petition no longer serves any function in the case. See Forsyth v. Humana,

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114 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)). Therefore, when a petitioner is allowed to amend his petition, he must write or type the

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amended petition so that it is complete in itself without reference to any earlier filed petition.

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E.D. Cal. L.R. 220. That is, petitioner must file a single amended petition that includes all

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information relevant to his claim(s). Thus, although he may not have intended this result,

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petitioner now has only his single claim (i.e. prosecutorial misconduct) pending.

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If petitioner wishes to pursue all four of his claims, that is, those raised in the original

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petition and the first amended petition, he must file a second amended petition that includes all

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four of his claims within 30 days of the date of this order. If petitioner does not file a second

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amended petition within 30 days, the court will direct respondent to file a response to the first

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amended petition, which only includes the claim for prosecutorial misconduct, and abandons the

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three claims raised in the original petition.

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So ordered.

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DATED: April 27, 2015.

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