Rivera v. Peery

Filing 37

ORDER signed by Magistrate Judge Carolyn K. Delaney on 12/6/18 GRANTING petitioner 30 days to file a Second Amended Petition. Respondent need take no further action until receiving further notice from the court. (Coll, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VINCENT RIVERA,

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No. 2:16-cv-0856 KJM CKD P

Petitioner,
v.

ORDER

S. PEERY,
Respondent.

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Petitioner is a California prisoner proceeding pro se with a petition for writ of habeas

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corpus under 28 U.S.C. §2254. On October 15, 2018, court granted petitioner’s motion for leave

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to file an amended petition. On December 4, 2018, respondent informed the court that the

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amended petition does not contain any claims from the original petition, only new claims. Local

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Rule 220 requires that an amended pleading be complete in itself without reference to any prior

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pleading. This is because, as a general rule, an amended pleading supersedes the original. See

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Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an amended pleading is filed, the original

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pleading no longer serves any function in the case.

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Accordingly, IT IS HERBY ORDERED that:

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1. Petitioner is granted 30 days within which to file a second amended petition for writ of

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habeas corpus which includes all claims he wishes to present to this court which also have been

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presented to, and rejected by, the California Supreme Court. Petitioner’s failure to file a second
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amended petition within 30 days will result in this action proceeding on petitioner’s amended

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petition for writ of habeas corpus.

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2. Respondent need take no further action until receiving further notice from the court.
Dated: December 6, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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rive0856.sap

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