Gordon v. Lizarraga

Filing 10

ORDER Vacating Stay and Vacating Motion Hearing. Signed by Judge Phyllis J. Hamilton on 12/10/2015. (pjhlc3, COURT STAFF) (Filed on 12/10/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHARLES DAVID GORDON,

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United States District Court
Northern District of California

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Case No. 12-cv-00769-PJH

Petitioner,

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v.

ORDER VACATING STAY AND
VACATING MOTION HEARING

JOE A. LIZARRAGA,

Re: Dkt. No. 9

Respondent.

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In light of petitioner’s notice of the California Supreme Court’s ruling on his state

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petition for writ of habeas corpus, the stay entered by order dated March 28, 2012 is

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hereby lifted and VACATED.

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Petitioner has filed a motion for leave to amend the habeas petition and to file the

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proposed first amended petition. The rule governing pleading amendments, Federal Rule

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of Civil Procedure 15, made applicable to habeas proceedings by 28 U.S.C. § 2242,

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Federal Rule of Civil Procedure 81(a)(2), and Habeas Corpus Rule 11, allows

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amendments with leave of court any time during a proceeding. Mayle v. Felix, 545 U.S.

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644, 654-55 (2005) (citing Fed. R. Civ. P. 15(a)). Before a responsive pleading is served,

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pleadings may be amended once as a matter of course, i.e., without seeking court leave.

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Id. at 655. The docket reflects that no order to show cause was issued and the initial

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habeas petition was not served on respondent. Petitioner may, therefore, file the

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amended petition without leave of court and withdraw the motion for leave to amend.

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See Sechrest v. Ignacio, 549 F.3d 789, 804 (9th Cir. 2008) (amendment of a petition

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generally constitutes waiver of any omitted arguments or claims from previous versions of

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the petition). If, however, petitioner for some reason would prefer to seek leave of court

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to file an amended petition, he shall file an amended notice of motion attaching a

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certificate of service indicating that respondent has been served with the motion.
The motion hearing noticed for February 3, 2016 is hereby VACATED. If petitioner

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prefers to file a motion for leave to amend rather than simply filing the amended petition

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and withdrawing the previously filed motion, he may re-notice the motion for the same

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date.

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IT IS SO ORDERED.

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Dated: December 10, 2015

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United States District Court
Northern District of California

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__________________________________
PHYLLIS J. HAMILTON
United States District Judge

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