Turner v. Baker et al

Filing 26

ORDER granting petitioners motion to amend petition for writ of habeas corpus ECF No. 21 ; petitioner will have until 12/16/2017 to file an amended petition; Clerk to send petitioner, along with a copy of this order, three copies of the blank form for a petition for writ of habeas corpus (mailed on 10/17/2017); respondents motion to dismiss is denied as moot; petitioners motion for enlargement of time ECF No. 24 is denied. See order for further details and instructions. Signed by Judge Miranda M. Du on 10/17/2017. (Copies have been distributed pursuant to the NEF - KW)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

DISTRICT OF NEVADA

7

***

8

JEREMY TURNER,

9
10
11
12

Case No. 3:17-cv-00139-MMD-WGC
Petitioner,

ORDER

v.
RENEE BAKER, et al.,
Respondents.

13
14

This case is a pro se petition for a writ of habeas corpus by Nevada prisoner

15

Jeremy Turner. On June 5, 2017, the respondents filed a motion to dismiss, contending

16

that several of the claims in Turner’s habeas petition are unexhausted — completely or

17

partially — in state court (ECF No. 10). Turner filed an opposition to respondents’ motion

18

to dismiss on September 20, 2017 (ECF No. 20), and respondents filed a reply on

19

September 27, 2017 (ECF No. 22).

20

On September 20, 2017, further responding to the motion to dismiss, Turner filed

21

a motion for leave to amend his petition (ECF No. 21), stating that he wishes to amend to

22

remove unexhausted claims from his petition. Respondents filed an opposition to Turner’s

23

motion for leave to amend on September 27, 2017 (ECF No. 23).

24

On October 4, 2017, Turner filed a motion for extension of time (ECF No. 24),

25

requesting a 60-day extension of time to file an amended petition. The Court recognizes

26

that this motion was probably filed in response to respondents’ argument, in their

27

opposition to the motion for leave to amend, that Turner’s motion for leave to amend

28

should be denied because Turner did not file a proposed amended petition as required

1

by the Court’s local rules. See LR 15-1. Respondents filed an opposition to the motion for

2

extension of time on October 9, 2017 (ECF No. 25).

3

A petition for writ of habeas corpus “may be amended or supplemented as

4

provided in the rules of procedure applicable to civil actions.” 28 U.S.C. § 2242; see also

5

Rule 12 of the Rules Governing Section 2254 Cases in the United States District Courts

6

(recognizing general applicability of rules of civil procedure in habeas cases). Turner’s

7

motion for leave to amend is governed by Federal Rule of Civil Procedure 15(a)(2), which

8

permits an amended pleading “only with the opposing party’s written consent or the

9

court’s leave.” The Court “should freely give leave when justice so requires.” See, e.g.,

10

Outdoor Systems, Inc. v. City of Mesa, 997 F.2d 604, 614 (9th Cir.1993) (denial of leave

11

to amend reviewed “for abuse of discretion and in light of the strong public policy

12

permitting amendment.”). Factors to be considered include “bad faith, undue delay,

13

prejudice to the opposing party, futility of the amendment, and whether the party has

14

previously amended his pleadings.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir.1995).

15

In this case, there is no indication of bad faith or undue delay on Turner’s part, with

16

respect to his seeking leave to amend. Further, there is no reason to believe there will be

17

unfair prejudice to the respondents if Turner is granted leave to amend, and there is no

18

reason to believe that the amendment will be futile; Turner states that the purpose for the

19

amendment would be to remove from his petition claims that are not exhausted in state

20

court. The Court finds that granting Turner, who brings this action pro se, leave to amend

21

at this point in this case is in the interest of justice.

22

Respondents correctly point out that Turner has not proffered a proposed

23

amended petition with his motion for leave to amend. See LR 15-1. Under the

24

circumstances here, however, the Court will waive that requirement. There has not yet

25

been a motion to dismiss adjudicated; the question of the procedural viability of all of

26

Turner’s claims remains open.

27

Given Turner’s expressed reason for seeking to amend, the early stage of this

28

action, and the fact that there has not yet been a motion to dismiss adjudicated, the Court
2

1

finds that there is no significant danger of unfair prejudice to respondents and there will

2

be no undue delay if Turner amends. The Court will grant Turner’s motion for leave to

3

amend his petition. The amendment will render moot the pending motion to dismiss, and

4

that motion will be denied, without prejudice, on that basis. Turner’s motion for extension

5

of time is unnecessary, as there is currently no deadline to be extended. That motion will

6

be denied. However, the Court takes into consideration that Turner requests sixty days

7

to file his amended petition.

8

It is therefore ordered that petitioner’s Motion to Amend Petition for Writ of Habeas

9

Corpus (ECF No. 21) is granted. Petitioner will have sixty (60) days from the date of entry

10

of this order to file an amended petition for writ of habeas corpus.

11

It is further ordered that the Clerk of the Court will send to petitioner, along with a

12

copy of this order, three copies of the blank form for a petition for writ of habeas corpus

13

pursuant to 28 U.S.C. § 2254. On that form, when drafting his amended petition, Turner

14

should write the word “Amended” above the word “Petition” in the caption on the first

15

page.

16

It is further ordered that respondents’ Motion to Dismiss (ECF No. 10) is denied as

17

moot. The denial of this motion is without prejudice to respondents asserting any of the

18

same arguments in a motion to dismiss the anticipated amended petition.

19
20

It is further ordered that petitioner’s Motion for Enlargement of Time (ECF No. 24)
is denied, as it is unnecessary.

21
22

DATED THIS 17th day of October 2017.

23
24

MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

25
26
27
28
3