Eubanks v. Baker et al

Filing 42

ORDER granting ECF No. 37 Motion for Leave to amend; Clerk directed to file the third amended petition for writ of habeas corpus attached to ECF No. 37 -1; ECF No. 39 Respondents' motion for extension of time ECF No. 39 is denied as moot; respondents answer/response to the petition due 12/24/2017. Signed by Judge Miranda M. Du on 10/25/2017. (Copies have been distributed pursuant to the NEF - KW)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 CHARLES EUBANKS, 10 11 12 13 Case No. 3:16-cv-00336-MMD-WGC Petitioner, ORDER v. RENEE BAKER, et al., Respondents. 14 15 Petitioner Eubanks has filed a motion for leave to amend his federal habeas 16 petition. (ECF No. 37.) Eubanks has already filed two amended petitions (ECF Nos. 16 17 and 31) but represents to the court that his second amended petition was not properly 18 pled because “there were duplicate claims, the unexhausted ineffective assistance of 19 appellate counsel claims were probably no longer viable as a result of recent Supreme 20 Court authority, the evidentiary support for some of the allegations had not been included, 21 several claims were unorganized, and some of the ineffectiveness claims had been pled 22 as Brady violations but had not been included within the Brady claim.” (ECF No. 37 at 2.) 23 Under 28 U.S.C. § 2242, a petition for writ of habeas corpus “may be amended or 24 supplemented as provided in the rules of procedure applicable to civil actions.” Federal 25 Rule of Civil Procedure 15(a)(1) provides that “[a] party may amend its pleading once as 26 a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which 27 a responsive pleading is required, 21 days after service of a responsive pleading or 21 28 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. 1 1 Civ. P. 15(a)(1). “In all other cases, a party may amend its pleading only with the opposing 2 party's written consent or the court's leave. The court should freely give leave when justice 3 so requires.” Fed. R. Civ. P. 15(a)(2). Whether to grant leave to amend rests in the sound 4 discretion of the trial court. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (citing 5 Outdoor Sys., Inc. v. City of Mesa, 997 F.2d 604, 614 (9th Cir.1993)). “In exercising its 6 discretion ‘a court must be guided by the underlying purpose of Rule 15 — to facilitate 7 decision on the merits rather than on the pleadings or technicalities.’” DCD Programs, 8 Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.1987) (quoting United States v. Webb, 655 9 F.2d 977, 979 (9th Cir. 1981)). 10 This Court finds that the factors that normally weigh against allowing amendment 11 — i.e., bad faith, undue delay, prejudice to the opposing party — are absent here. See 12 Bonin, 59 F.3d at 845 (discussing factors to be considered under Fed. R. Civ. P. 15(a)(2)). 13 Moreover, respondents have filed a response indicating that they do not oppose the 14 request for leave to amend. (ECF No. 40.) Thus, the motion will be granted. See Webb, 15 655 F.2d at 979 (“Rule 15's policy of favoring amendments to pleadings should be applied 16 with ‘extreme liberality.’” (Citation omitted.)). 17 It is therefore ordered that petitioner’s motion for leave to amend (ECF No. 37) is 18 granted. The Clerk of the Court will file as a separate docket entry the “third amended 19 petition for writ of habeas corpus” currently attached to petitioner’s motion (ECF No. 37- 20 1). 21 It is further ordered that respondents motion for extension of time (ECF No. 39) is 22 denied as moot. Respondents will have sixty (60) days from the date this order is entered 23 within which to answer, or otherwise respond to the petition. 24 Petitioner will have forty-five (45) days following service of an answer by 25 respondents to file and serve a reply. Respondents will thereafter have thirty (30) days 26 following service of a reply to file and serve a response to the reply. 27 If respondents file a motion to dismiss, petitioner will have thirty (30) days following 28 service of the motion to file and serve an opposition to the motion. Respondents will 2 1 thereafter have thirty (30) days following service of the opposition to the motion to file and 2 serve a reply. 3 DATED THIS 25th day of October 2017. 4 5 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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