Gibbs v. Attorney General of California

Filing 14

ORDER signed by Magistrate Judge Deborah Barnes on 11/9/16 ORDERING that petitioner's motions to amend (ECF Nos. 7 , 8 , 9 , 10 ) are DENIED as MOOT; and petitioner's August 8, 2016 petition for writ of habeas corpus (ECF No. 10 ) is deemed the operative petition in this case.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT ALAN GIBBS,

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No. 2:16-cv-1629 JAM DB P

Petitioner,
v.

ORDER

ATTORNEY GENERAL OF
CALIFORNIA,
Respondent.

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Petitioner, a county inmate proceeding in pro per, has filed a petition for writ of habeas
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corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges proceedings in the Shasta County
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Superior Court, Case NO. 15F5736, as they relate to charges against him for making criminal
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threats in violation of California Penal Code § 422. (See ECF No. 1 at 3.)
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Since this action was initiated, petitioner filed four additional petitions for writ of habeas
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corpus premised on the proceedings in the Shasta County Superior Court. See Gibbs v. Shasta
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County, 2:16-cv-1668 AC (E.D. Cal.); Gibbs v. Flynn, 2:16-cv-1670 AC (E.D. Cal.); Gibbs v.
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Shasta County, 2:16-cv-1868 EFB (E.D. Cal.); Gibbs v. Shasta County, 2:16-cv-1869 JAM KJN
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(E.D. Cal.). It is well-established that if a new petition is filed when a previous habeas petition is
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still pending before the district court without a decision having been rendered, then the new
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petition should be construed as a motion to amend the pending petition. Woods v. Carey, 525
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F.3d 886, 888 (9th Cir. 2008). Pursuant to this authority, each of those additional actions has now

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been closed and petitioner’s filings construed as motions to amend the petition in this case.

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When a district court construes a new petition as a motion to amend, that court’s

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obligation is to rule on the motion in accordance with the standards for permitting amendment

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established by Federal Rule of Civil Procedure 15. See 28 U.S.C. § 2242; Woods, 525 F.3d at

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890. Under Rule 15(a), a party may generally amend its pleading once as a matter of course;

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otherwise, written consent from the opposing party or leave of court must be obtained. Leave to

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amend shall be given freely when justice requires. In deciding whether justice requires granting

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leave to amend, factors to be considered include the presence or absence of undue delay, bad

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faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, undue

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prejudice to the opposing party and futility of the proposed amendment. Forman v. Davis, 371

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U.S. 178, 182 (1962). Since petitioner may amend his petition once as a matter of course, leave to

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amend is unnecessary.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s motions to amend (ECF Nos. 7, 8, 9, 10) are denied as moot; and

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2. Petitioner’s August 8, 2016 petition for writ of habeas corpus (ECF No. 10) is deemed

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the operative petition in this case.
Dated: November 9, 2016

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/DLB7;gibb1629.mta

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