Tucker v. Warden

Filing 27

ORDER signed by Magistrate Judge Kendall J. Newman on 1/14/19 GRANTING 20 Motion to Amend the petition; DENYING 17 Motion to Dismiss; and denying 25 Motion to conduct discovery. Within 30 days from the date of this order, petitioner shall fi le an amended petition on the courts form for filing a petition for writ of habeas corpus under 28 U.S.C. § 2254; the Clerk of the Court is directed to send petitioner the form for filing a petition for writ of habeas corpus under 28 U.S.C. § 2254. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY ALLEN TUCKER,

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No. 2:18-cv-0035 TLN KJN P

Petitioner,
v.

ORDER

WARDEN, SACRAMENTO STATE
PRISON,
Respondent.

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Petitioner is a state prisoner, proceeding without counsel. Respondent has filed a motion

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to dismiss this action because petitioner failed to use the proper form; his claims that he received

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ineffective assistance of trial counsel, that his sentence was unauthorized, and that a firearm

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enhancement was improperly imposed are untimely; and his claim regarding parole eligibility is

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not cognizable on federal habeas. Subsequently, petitioner filed a motion to amend to correct or

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cure the deficiencies addressed in respondent’s motion. Respondent does not oppose the motion

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to amend, and states that addressing the issues in the motion to dismiss would be premature if the

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court allows petitioner to file an amended petition. (ECF No. 24 at 1.)

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Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend shall be given

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freely when justice requires. In deciding whether justice requires granting leave to amend, factors

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to be considered include the presence or absence of undue delay, bad faith, dilatory motive,
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repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing

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party, and futility of proposed amendment. Based on the foregoing factors, the undersigned

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concludes that justice requires leave to amend in this instance. In addition to filing his amended

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petition on the court’s habeas form, petitioner should name David Baughman, current warden of

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California State Prison, Sacramento, as respondent. See Stanley v. California Supreme Court, 21

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F.3d 359, 360 (9th Cir. 1994). By this order, the undersigned makes no finding as to the

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timeliness of any of the claims contained in his original petition under 28 U.S.C. § 2244(d)(1).

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Petitioner is cautioned that failure to file an amended petition may result in the dismissal of this

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action.

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Because petitioner is granted leave to file an amended petition, respondent’s motion to

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dismiss is dismissed without prejudice. Similarly, petitioner’s motion for discovery is premature,

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and is denied without prejudice to its renewal after resolution of respondent’s renewed motion to

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dismiss.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion to amend (ECF No. 20) is granted;

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2. Within thirty days from the date of this order, petitioner shall file an amended petition

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on the court’s form for filing a petition for writ of habeas corpus under 28 U.S.C. § 2254;
3. The Clerk of the Court is directed to send petitioner the form for filing a petition for
writ of habeas corpus under 28 U.S.C. § 2254;

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4. Respondent’s motion to dismiss (ECF No. 17) is denied without prejudice; and

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5. Petitioner’s motion to conduct discovery (ECF No. 25) is denied without prejudice.

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Dated: January 14, 2019

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/tuck0035.mta

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