Lathan v. Martel

Filing 13

ORDER signed by Magistrate Judge Carolyn K. Delaney on 7/5/2017 VACATING 8 Findings and Recommendations and GRANTING 12 Motion to Amend the Complaint. Petitioner to file second amended habeas corpus petition within 30 days from the date of this order. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KERRY L. LATHAN,

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No. 2:17-cv-0464 JAM CKD P

Petitioner,
v.

ORDER

MICHAEL MARTEL,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed a first amended application for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254.

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I.

Procedural History of First Amended Habeas Corpus Petition

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On June 1, 2017 this court screened petitioner’s first amended habeas corpus petition

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challenging his improper “R” suffix designation and concluded that the claims presented were not

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cognizable on habeas because the relief he sought would not lead to his speedier release from

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custody. ECF No. 8 at 2-3. The court also noted petitioner’s pending civil rights lawsuit in

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Lathan v. CDCR, 2:16-cv-0757 TLN CMK P, which raises the same challenges to his “R” suffix

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designation. Id. at 2. As a result, the undersigned recommended summarily dismissing

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petitioner’s first amended habeas corpus petition.

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While these findings and recommendations were pending, petitioner filed what the Ninth
Circuit Court of Appeals liberally construed as an application for leave to file a second or
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successive 28 U.S.C. § 2254 petition. See ECF No. 11. Since his first amended habeas petition

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was still pending before this court, the Ninth Circuit denied the application as unnecessary. The

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Court of Appeal transferred the matter to this court with instructions that petitioner’s application

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be processed as a motion to amend his currently pending habeas petition. Accordingly,

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petitioner’s motion to amend was filed in this court on June 28, 2017. ECF No. 12. In light of

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these recent events, the court will vacate its June 1, 2017 findings and recommendations and rule

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on the pending motion to amend.

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II.

Motion to Amend First Amended Habeas Corpus Petition

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Habeas petitions “may be amended or supplemented as provided in the rules of procedure

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applicable to civil actions.” 28 U.S.C. § 2242. Under Rule 15(a) of the Federal Rules of Civil

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Procedure, a party may amend its pleading once as a matter of right within 21 days after serving

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it. Whether to grant leave to amend rests in the sound discretion of the trial court. See Bonin v.

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Calderon, 59 F.3d 815, 845 (9th Cir.1995) (citing Outdoor Sys., Inc. v. City of Mesa, 997 F.2d

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604, 614 (9th Cir.1993)). “In exercising its discretion ‘a court must be guided by the underlying

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purpose of Rule 15—to facilitate decision on the merits rather than on the pleadings or

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technicalities.’” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.1987) (quoting

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United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)).

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Petitioner commenced the present action by filing “a document seeking to appeal a

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decision of the California Supreme Court.” ECF No. 3. In response, the court provided petitioner

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additional time to file an initial federal habeas petition on the court approved form. Id. In this

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order, the court made clear that it would not “issue any orders granting or denying relief until an

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action has been properly commenced.” Id.

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When the initial federal habeas petition was received by the court, it was automatically

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docketed as a “First Amended Habeas Corpus Petition.” ECF No. 6. However, based on this

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procedural history, the court will not construe the first amended habeas petition as petitioner’s

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amended pleading as a matter of course. See Fed. R. Civ. P. 15(a)(1). So construed, the

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undersigned will grant petitioner’s pending motion to amend since the initial petition has not been

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served on respondent. Id.
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III.

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The court is no longer recommending that your current habeas petition be dismissed.

Plain Language Summary for Pro Se Party

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Instead, you are being given another chance to file a federal habeas petition that contains any

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challenges to your 2015 parole denial. This decision does not affect the claims challenging your

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“R” suffix label which are still pending in Lathan v. CDCR, 2:16-cv-0757 TLN CMK P.

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You may take any of the following actions in response to this order: 1) fill out the

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enclosed 28 U.S.C. § 2254 form with any claims challenging your 2015 parole denial and return it

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to the court; or, 2) do not complete the enclosed form if you do not want the federal court to

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review the parole board’s denial.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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2. Petitioner’s motion to amend the first amended 28 U.S.C. § 2254 petition, ECF No.

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The court’s June 1, 2017 findings and recommendations, ECF No. 8, are vacated;

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3. Petitioner is granted thirty days from the date of this order to file a second amended

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habeas corpus petition on the court approved form;

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4. Any amended petition must be filed on the form employed by this court and must state

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all claims and prayers for relief on the form. It must bear the case number assigned to

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this action and must bear the title “Second Amended Petition”;

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The Clerk of the Court is directed to send petitioner the form for habeas corpus
application; and,

6. Petitioner’s failure to file a second amended petition will result in a recommendation
that this matter be dismissed.
Dated: July 5, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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12/lath0464.vacatef&r.doc(x)

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