Plascencia v. People of the State of California
Filing
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ORDER signed by Magistrate Judge Kendall J. Newman on 9/25/2017 ORDERING Clerk of Court to append pages 5-15 of 1 Petition to the end of 18 Second Amended Petition beginning as a new page 30, prior to the exhibits, and ORDERING within 30 days from the date of this order, respondent to file either: a.) an amended answer, or b.) a notice that respondent stands on the previously-filed answer. (Henshaw, R)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JOSE PLASCENCIA,
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Petitioner,
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No. 2:14-cv-2412 WBS KJN P
v.
ORDER
MICHAEL SEXTON, Warden,1
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Respondent.
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Petitioner is a state prisoner, proceeding without counsel. Petitioner filed a second
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amended petition in which he raised two claims for relief: (1) ineffective assistance of trial
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counsel; and (2) ineffective assistance of appellate counsel. (ECF No. 18 at 5-17; 19-20.)
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Respondent filed an answer, but first addresses the state court’s rejection of petitioner’s claim that
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the jury was not instructed on elements of the state-law defense of self-defense. (ECF No. 22 at
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10.) Respondent notes petitioner’s disagreement with the state court’s ruling, citing petitioner’s
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original petition (ECF No. 1 at 5-15), which is no longer operative in light of petitioner’s
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amendment. Local Rule 220. Respondent also refers to petitioner’s second amended petition at
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25 ¶ 14. (ECF No. 22 at 10.) However, paragraph 14 discusses how petitioner sought to stay this
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action to enable him to return to state court and exhaust his ineffective assistance of counsel
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The current Warden of California State Prison, Corcoran (“CSP-COR”) is Michael Sexton, who
is substituted as respondent in this matter. Fed. R. Civ. P. 25(d); see Brittingham v. United
States, 982 F.2d 378, 379 (9th Cir. 1992).
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claims, and subsequently filed a motion to lift the stay to join his ineffective assistance of counsel
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claims with the pending writ in the instant case. (ECF No. 18 at 25.) Respondent argues that
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petitioner’s “failure to engage [the state court] discussion gives respondent nothing to respond
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to.” (ECF No. 22 at 10.) Subsequently, petitioner filed an addendum to the traverse and a
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traverse in which he substantively argues his claim concerning the jury instruction. (ECF Nos.
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30, 31.)
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It appears from petitioner’s comment in the second amended petition that petitioner
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thought his amended petition would simply join with his original petition. (ECF No. 18 at 25.)
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However, the Federal Rules require that the habeas petition must, inter alia, (1) specify all the
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grounds for relief available to the petitioner; (2) state the facts supporting each ground. Rule 2(c),
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28 U.S.C. foll. § 2254. Moreover, Local Rule 220 requires that an amended pleading be complete
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in itself without reference to any prior pleading. This requirement exists because, as a general
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rule, an amended pleading supersedes the original pleading. See Loux v. Rhay, 375 F.2d 55, 57
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(9th Cir. 1967). Once petitioner filed an amended petition, the original petition no longer served
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any function in the case. Therefore, any amended petition must include all of the grounds for
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which petitioner seeks review, as well as any supporting facts.
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Because it appears that petitioner did not intend to abandon his jury instruction claim, but
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rather intended his amended petition to be joined with his original petition; and in the answer,
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respondent referred to the original petition containing petitioner’s arguments, and included
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argument concerning the jury instruction claim rather than arguing petitioner abandoned the
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claim; and to avoid any further delay, the court instructs the clerk’s office to append pages 5
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through 15 from petitioner’s original pleading to the end of petitioner’s second amended petition,
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beginning as a new page 30, prior to the exhibits. Thereafter, petitioner’s jury instruction claim
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shall be identified as petitioner’s ground or claim “three” rather than “one.”
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Respondent is granted thirty days in which to file an amended answer, or to stand on the
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previously-filed answer. If respondent chooses the latter option, no further filing by petitioner is
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permitted. If respondent files an amended answer, petitioner is granted thirty days in which to
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file one amended traverse.
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Accordingly, IT IS HEREBY ORDERED that:
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1. The Clerk of the Court shall append pages 5 - 15 of the original petition (ECF No. 1 at
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5 - 15), without the case banner, to the end of the second amended petition (ECF No. 18)
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beginning as a new page 30, prior to the exhibits.
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2. Within thirty days from the date of this order, respondent shall file either (a) an
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amended answer, or (b) a notice that respondent stands on the previously-filed answer. If
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respondent chooses option (b), no further filing by petitioner is permitted. If respondent files an
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amended answer, petitioner is granted thirty days in which to file one amended traverse.
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Dated: September 25, 2017
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