Fenton v. Baca et al

Filing 34

ORDER - It is therefore ordered that the Motion (ECF No. 30 ) is granted. Fenton has until and including November 30, 2023, to file a second-amended petition. In all other respects, the schedule for further proceedings set forth in the order entered August 3, 2023 (ECF No. 27 ) will remain in effect. Signed by Chief Judge Miranda M. Du on 9/28/2023. (Copies have been distributed pursuant to the NEF - DLS)

Case 3:16-cv-00749-MMD-CLB Document 34 Filed 09/28/23 Page 1 of 2

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JOHN MARK FENTON,
Petitioner,

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Case No. 3:16-cv-00749-MMD-CLB
ORDER

v.
ISIDRO BACA, et al.,
Respondents.

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The Court previously appointed counsel for Petitioner John Mark Fenton in this

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habeas corpus action. (ECF No. 12.) Counsel made an initial appearance for Fenton and

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moved for a stay. (ECF Nos. 13, 20.) On April 9, 2018, the Court granted the motion for

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stay. (ECF No. 21.) On August 3, 2023, this Court reopened this matter and gave Fenton

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60 days to file his first-amended petition. (ECF No. 27.) On September 12, 2023, Fenton

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timely filed his first-amended petition and moved for leave to file a second-amended

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petition. (ECF Nos. 28, 30 (“Motion”).) Respondents opposed the Motion, and Fenton

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replied. (ECF Nos. 32, 33.)

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In his Motion, Fenton states that he filed his first-amended petition as a protective

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petition to ensure that all the claims would be preserved as timely filed. (ECF No. 30 at

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2.) Fenton requests leave to file a second-amended petition so that he has a reasonable

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opportunity to prepare an amended petition that fully reflects counsel’s considered

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judgment. (Id. at 3.) Fenton further requests that the Court waive the requirement of LR

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15-1(a), which generally requires a party to attach the proposed amended pleading to a

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motion seeking leave of court to amend, explaining that the rule is ill-suited for this

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situation. (Id. at 4.)

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Case 3:16-cv-00749-MMD-CLB Document 34 Filed 09/28/23 Page 2 of 2

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Local Rule 15-1(a) states that a proposed amended pleading must be submitted

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with the motion for leave to amend unless otherwise permitted by the court. When the

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court appoints counsel to represent habeas corpus petitioners, as a matter of course it

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gives counsel leave to file an amended petition. The only difference here is that counsel

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is trying to file a petition before the one-year deadline to minimize the probability that

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grounds for relief would not relate back to a timely petition. The Court sees no reason to

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depart from its usual practice in habeas corpus cases of allowing amended petitions

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under these circumstances. Moreover, under Federal Rule of Civil Procedure 15(a)(2), a

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party may amend a pleading with the Court’s leave, and “[t]he court should freely give

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leave when justice so requires.”

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The Court finds that there is good cause for Fenton to file a second-amended

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habeas petition, so the Court grants the Motion and waives the requirement of LR 15-

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1(a). This order does not, however, affect, in any manner, the operation of the statute of

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limitations in this case, and the Court does not mean in this order to convey any opinion

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whatsoever about when the limitations period expires (or expired).

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It is therefore ordered that the Motion (ECF No. 30) is granted. Fenton has until

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and including November 30, 2023, to file a second-amended petition. In all other respects,

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the schedule for further proceedings set forth in the order entered August 3, 2023 (ECF

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No. 27) will remain in effect.

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DATED THIS 28th day of September 2023.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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