Nordlof v. Clark

Filing 21

ORDER DIRECTING PETITIONER TO FILE SECOND AMENDED PETITION; DENYING 13 WITHOUT PREJUDICE RESPONDENT'S MOTION TO DISMISS; SETTING BRIEFING SCHEDULE. Signed by Judge Maxine M. Chesney on April 23, 2009. (mmcsec, COURT STAFF) (Filed on 4/23/2009)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA MICHAEL B. NORDLOF, ) ) Petitioner, ) ) v. ) ) KEN CLARK, Warden, ) ) Respondent. ) ______________________________ ) No. C 07-4899 MMC (PR) ORDER DIRECTING PETITIONER TO FILE SECOND AMENDED PETITION; DENYING WITHOUT PREJUDICE RESPONDENT'S MOTION TO DISMISS; SETTING BRIEFING SCHEDULE (Docket No. 13)

On September 21, 2007, petitioner, a California prisoner incarcerated at Corcoran State Prison and proceeding pro se, filed the above-titled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After reviewing the petition, which contained seven claims for relief, the Court ordered respondent to file an answer showing cause why the petition should not be granted, or in the alternative, a motion to dismiss on procedural grounds. Thereafter, by order filed August 19, 2008, and prior to respondent's filing a response to the original petition, the Court granted petitioner's motion to file a first amended petition containing twenty claims for relief. Now pending before the Court is respondent's motion to dismiss the first amended petition ("FAP") as unexhausted and untimely. In so moving, respondent argues that the twenty claims raised in the FAP are wholly distinct from the seven claims raised in the original petition, and that the FAP supercedes the original petition. In opposition, petitioner

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asserts he did not intend the FAP to supercede the original petition but, rather, that the FAP and original petition be considered together. In reply, respondent argues petitioner should not be allowed to reinstate the claims from the original petition. Generally, the filing of a new petition cancels out the old petition, and such amended petition constitutes a waiver of any omitted claims that had been included in previous versions of the petition. See Sechrest v. Ignacio, 549 F.3d 789, 804 (9th Cir. 2008). Where the omission of claims from an amended petition is not voluntary, however, the earlier claims are not deemed waived. Id. Here, petitioner, a prisoner proceeding pro se, states he did not intend the filing of the FAP to result in omission of the claims from the original petition. Consequently, in light of petitioner's pro se status, and good cause appearing, the Court hereby ORDERS petitioner to file, within thirty days of the date this order is filed, a second amended petition containing all claims petitioner intends to raise in the instant action. Petitioner is advised that the second amended petition will supercede both the original petition and the FAP, and may not incorporate by reference any parts of either the original petition or the FAP. In filing the second amended petition, petitioner shall use the court's form habeas corpus petition, a copy of which is provided herewith, and include in the caption both the case number of this action, No. C 07-4899 MMC (PR), and the heading "SECOND AMENDED PETITION." Additionally, petitioner must serve a copy of the second amended petition on respondent's counsel. If petitioner fails to file a timely second amended petition in conformity with this order, the action will be dismissed without prejudice and the case will be closed. Based on the foregoing, respondent's motion to dismiss the FAP as unexhausted and untimely is hereby DENIED without prejudice. Within ninety days of the date respondent is served with the second amended petition, respondent shall file a response thereto. Within thirty days of the date such response is filed, petitioner shall file with the Court and serve on respondent a responsive pleading. If respondent files a motion to dismiss, respondent shall file a reply to petitioner's opposition within fifteen days of the date such opposition is filed.
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This order terminates Docket No. 13. IT IS SO ORDERED. DATED: April 23, 2009 _________________________ MAXINE M. CHESNEY United States District Judge

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