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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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CHARLES EUBANKS,

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Case No. 3:16-cv-00336-MMD-WGC
Petitioner,

ORDER

v.
RENEE BAKER, et al.,
Respondents.

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Petitioner Eubanks has filed a motion for leave to amend his federal habeas

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petition. (ECF No. 37.) Eubanks has already filed two amended petitions (ECF Nos. 16

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and 31) but represents to the court that his second amended petition was not properly

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pled because “there were duplicate claims, the unexhausted ineffective assistance of

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appellate counsel claims were probably no longer viable as a result of recent Supreme

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Court authority, the evidentiary support for some of the allegations had not been included,

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several claims were unorganized, and some of the ineffectiveness claims had been pled

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as Brady violations but had not been included within the Brady claim.” (ECF No. 37 at 2.)

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Under 28 U.S.C. § 2242, a petition for writ of habeas corpus “may be amended or

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supplemented as provided in the rules of procedure applicable to civil actions.” Federal

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Rule of Civil Procedure 15(a)(1) provides that “[a] party may amend its pleading once as

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a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which

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a responsive pleading is required, 21 days after service of a responsive pleading or 21

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days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R.
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Civ. P. 15(a)(1). “In all other cases, a party may amend its pleading only with the opposing

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party's written consent or the court's leave. The court should freely give leave when justice

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so requires.” Fed. R. Civ. P. 15(a)(2). Whether to grant leave to amend rests in the sound

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discretion of the trial court. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (citing

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Outdoor Sys., Inc. v. City of Mesa, 997 F.2d 604, 614 (9th Cir.1993)). “In exercising its

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discretion ‘a court must be guided by the underlying purpose of Rule 15 — to facilitate

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decision on the merits rather than on the pleadings or technicalities.’” DCD Programs,

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Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.1987) (quoting United States v. Webb, 655

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F.2d 977, 979 (9th Cir. 1981)).

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This Court finds that the factors that normally weigh against allowing amendment

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— i.e., bad faith, undue delay, prejudice to the opposing party — are absent here. See

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Bonin, 59 F.3d at 845 (discussing factors to be considered under Fed. R. Civ. P. 15(a)(2)).

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Moreover, respondents have filed a response indicating that they do not oppose the

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request for leave to amend. (ECF No. 40.) Thus, the motion will be granted. See Webb,

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655 F.2d at 979 (“Rule 15's policy of favoring amendments to pleadings should be applied

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with ‘extreme liberality.’” (Citation omitted.)).

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It is therefore ordered that petitioner’s motion for leave to amend (ECF No. 37) is

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granted. The Clerk of the Court will file as a separate docket entry the “third amended

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petition for writ of habeas corpus” currently attached to petitioner’s motion (ECF No. 37-

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1).

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It is further ordered that respondents motion for extension of time (ECF No. 39) is

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denied as moot. Respondents will have sixty (60) days from the date this order is entered

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within which to answer, or otherwise respond to the petition.

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Petitioner will have forty-five (45) days following service of an answer by

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respondents to file and serve a reply. Respondents will thereafter have thirty (30) days

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following service of a reply to file and serve a response to the reply.

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If respondents file a motion to dismiss, petitioner will have thirty (30) days following

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service of the motion to file and serve an opposition to the motion. Respondents will
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thereafter have thirty (30) days following service of the opposition to the motion to file and

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serve a reply.

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DATED THIS 25th day of October 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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