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)

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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

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