Cole v. Cate et al

Filing 15

ORDER granting 14 Motion for Leave to File First Amended Petition for Writ of Habeas Corpus. Petitioner's Amended Petition due 8/1/12. If Petitioner files an amended petition, the following briefing schedule applies: Respondent's Moti on to Dismiss due 9/14/12. If Respondent files a Motion to Dismiss, Petitioner's Opposition due 10/15/12. If Respondent does not contend that the Petition can be decided without the Court reaching the merits of Petitioners claims, Respondent's Answer due 10/1/2012 Traverse by Petitioner due 11/1/2012. Signed by Magistrate Judge David H. Bartick on 6/26/12. (All non-registered users served via U.S. Mail Service)(cge)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DAVID COLE,

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Petitioner,

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v.

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MATTHEW CATE, Secretary,

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Respondent.

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Case No. 12cv302-AJB (DHB)
ORDER GRANTING MOTION FOR
LEAVE TO FILE FIRST AMENDED
PETITION FOR WRIT OF HABEAS
CORPUS
[ECF No. 14]

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On January 31, 2012, Petitioner David Cole, a state prisoner proceeding pro se, filed a

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Petition for Writ of Habeas Corpus. On February 8, 2012, the Court issued a Briefing Schedule in

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accordance with Rule 4 of the rules governing petitions for a writ of habeas corpus under 28 U.S.C.

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§2254. On May 9, 2012, Respondent filed an Answer. On June 11, 2012, Petitioner requested an

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extension of time to file his Traverse. The Court granted the motion, and Petitioner was ordered to

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file his Traverse no later than July 16, 2012. On June 14, 2012, Petitioner filed the instant Motion

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to Amend his Petition for Writ of Habeas Corpus. (ECF No. 14.) In his request, Petitioner

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represents that he recently discovered that he inadvertently omitted two exhausted claims. Petitioner

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seeks to amend the present Petition to include these claims in order to save judicial resources.

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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. Federal Rule of Civil Procedure 15(a)(2) provides

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that leave to amend should be freely given "when justice so requires." Fed.R.Civ.P. 15(a)(2).

12cv302-AJB (DHB)

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However, leave to amend need not be granted where the amendment "would cause the opposing

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party undue prejudice, is sought in bad faith, constitutes an exercise in futility, or creates undue

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delay." Ascon Properties, Inc. v. Mobile Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989); Roth v.

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Garcia Marquez, 942 F.2d 617, 628 (9th Cir. 1991).

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The Court finds that Petitioner does not seek to amend his Petition in bad faith and that such

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amendment would not unduly prejudice Respondent or create undue delay. In the interest of

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assessing the merits of the Petition in its entirety, the Court finds good cause to grant Petitioner's

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request. Accordingly, IT IS HEREBY ORDERED:

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1.

Petitioner's Motion for Leave to Amend his Petition for Writ of Habeas Corpus is

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GRANTED. Petitioner shall file his Amended Petition for Writ of Habeas Corpus, captioned "First

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Amended Petition for Writ of Habeas Corpus," or before August 1, 2012. Petitioner shall include

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all original and new claims in this Amended Petition. See Civil Local Rule 15.1 ("[E]very pleading

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to which an amendment is permitted as a matter of right or has been allowed by court order, must

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be retyped and filed so that it is complete in itself without reference to the superseded pleading. All

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amended pleadings must contain copies of all exhibits referred to in such amended pleadings.").

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If Petitioner does not file a First Amended Petition for Writ of Habeas Corpus by August 1,
2012, the Court will proceed on the original Petition.

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2.

If Petitioner files a First Amended Petition for Writ of Habeas Corpus, the following

briefing schedule shall apply:

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a.

Respondent shall file any motion to dismiss no later than September 14, 2012.

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b.

If Respondent files a motion to dismiss, Petitioner shall file his opposition, if any,
to the motion no later than October 15, 2012.

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c.

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If Respondent does not contend that the Petition can be decided without the Court

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reaching the merits of Petitioner’s claims, Respondent shall file and serve an answer

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to the Petition no later than October 1, 2012.

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12cv302-AJB (DHB)

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d.

Petitioner may file a traverse to matters raised in the answer no later than November

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1, 2012.

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IT IS SO ORDERED.

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DATED: June 26, 2012

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DAVID H. BARTICK
United States Magistrate Judge

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12cv302-AJB (DHB)