Khianthalat v. Secretary, Department of Corrections et al

Filing 10

ORDER: Petitioner's Motion for Leave to Amend Complaint (Dkt. 8) is GRANTED. The Clerk shall accept for filing and docket Plaintiff's proposed amended petition (Dkt. 8-1) as "Petitioner's Amended Petition." Respondent sha ll have SIXTY (60) DAYS from the date of this Order to file a response to the Amended Petition in accordance with the Court's November 27, 2013, Order (see Dkt. 7). Petitioner may file a reply within THIRTY (30) DAYS from the date on which Resp ondent serves the response. The reply shall not exceed twenty-five (25) pages. Respondent's Motion for Extension of Time to Respond to [original] Federal Habeas Petition (Dkt. 9) is DENIED as moot. Signed by Judge James S. Moody, Jr on 1/30/2014. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

SAYSINH P. KHIANTHALAT,
Petitioner,
-vs-

Case No. 8:13-CV-2702-T-30TGW

SECRETARY, DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
__________________________/
ORDER
Before the Court are Petitioner’s Motion for Leave to Amend Complaint (Dkt. 8), and
Respondent’s Motion for Extension of Time to Respond to [original] Federal Habeas Petition
(Dkt. 9). It appears that Petitioner moves to amend his petition to raise one additional claim,
to wit, Ground Five (see Dkt. 8-1 at pp. 38-39).
Rule 11 of the Rules Governing Section 2254 Proceedings authorizes district courts
to apply the Federal Rules of Civil Procedure consistent with the Rules Governing Section
2254 Proceedings. Rule 15 of the Federal Rules of Civil Procedure governs proposed
amendments to a complaint. Rule 15(a) states:
Amendments Before Trial.
(1) Amending as a Matter of Course. A party may amend its pleading once
as a matter of course within:
(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading is required, 21
days after service of a responsive pleading or 21 days after service of a motion
under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading
only with the opposing party’s written consent or the court’s leave. The court
should freely give leave when justice so requires.
(3) Time to Respond. Unless the court orders otherwise, any required
response to an amended pleading must be made within the time remaining to
respond to the original pleading or within 14 days after service of the amended
pleading, whichever is later.
Because Petitioner filed his motion to amend his petition approximately two months after he
submitted his initial petition, he may amend his petition “only with the opposing party’s
written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(1)-(2).
The Court concludes that because Respondent has not filed a response as of this date,
and because the proposed additional claim appears to be timely under the one-year
limitations period set forth in 28 U.S.C. § 2244(d)(1), the motion for leave to file an amended
petition should be granted.
ACCORDINGLY, the Court ORDERS that:
1.

Petitioner’s Motion for Leave to Amend Complaint (Dkt. 8) is GRANTED.

2.

The Clerk shall accept for filing and docket Plaintiff’s proposed amended

petition (Dkt. 8-1) as “Petitioner’s Amended Petition.”
3.

Respondent shall have SIXTY (60) DAYS from the date of this Order to file

a response to the Amended Petition in accordance with the Court’s November 27, 2013,
Order (see Dkt. 7).
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4.

Petitioner may file a reply within THIRTY (30) DAYS from the date on which

Respondent serves the response. The reply shall not exceed twenty-five (25) pages.
5.

Respondent’s Motion for Extension of Time to Respond to [original] Federal

Habeas Petition (Dkt. 9) is DENIED as moot.
DONE and ORDERED in Tampa, Florida on January 30, 2014.

Copy to: Counsel of Record
Petitioner pro se

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