Turner v. Baker et al
Filing
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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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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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JEREMY TURNER,
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Case No. 3:17-cv-00139-MMD-WGC
Petitioner,
ORDER
v.
RENEE BAKER, et al.,
Respondents.
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This case is a pro se petition for a writ of habeas corpus by Nevada prisoner
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Jeremy Turner. On June 5, 2017, the respondents filed a motion to dismiss, contending
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that several of the claims in Turner’s habeas petition are unexhausted — completely or
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partially — in state court (ECF No. 10). Turner filed an opposition to respondents’ motion
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to dismiss on September 20, 2017 (ECF No. 20), and respondents filed a reply on
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September 27, 2017 (ECF No. 22).
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On September 20, 2017, further responding to the motion to dismiss, Turner filed
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a motion for leave to amend his petition (ECF No. 21), stating that he wishes to amend to
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remove unexhausted claims from his petition. Respondents filed an opposition to Turner’s
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motion for leave to amend on September 27, 2017 (ECF No. 23).
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On October 4, 2017, Turner filed a motion for extension of time (ECF No. 24),
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requesting a 60-day extension of time to file an amended petition. The Court recognizes
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that this motion was probably filed in response to respondents’ argument, in their
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opposition to the motion for leave to amend, that Turner’s motion for leave to amend
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should be denied because Turner did not file a proposed amended petition as required
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by the Court’s local rules. See LR 15-1. Respondents filed an opposition to the motion for
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extension of time on October 9, 2017 (ECF No. 25).
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A petition for writ of habeas corpus “may be amended or supplemented as
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provided in the rules of procedure applicable to civil actions.” 28 U.S.C. § 2242; see also
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Rule 12 of the Rules Governing Section 2254 Cases in the United States District Courts
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(recognizing general applicability of rules of civil procedure in habeas cases). Turner’s
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motion for leave to amend is governed by Federal Rule of Civil Procedure 15(a)(2), which
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permits an amended pleading “only with the opposing party’s written consent or the
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court’s leave.” The Court “should freely give leave when justice so requires.” See, e.g.,
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Outdoor Systems, Inc. v. City of Mesa, 997 F.2d 604, 614 (9th Cir.1993) (denial of leave
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to amend reviewed “for abuse of discretion and in light of the strong public policy
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permitting amendment.”). Factors to be considered include “bad faith, undue delay,
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prejudice to the opposing party, futility of the amendment, and whether the party has
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previously amended his pleadings.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir.1995).
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In this case, there is no indication of bad faith or undue delay on Turner’s part, with
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respect to his seeking leave to amend. Further, there is no reason to believe there will be
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unfair prejudice to the respondents if Turner is granted leave to amend, and there is no
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reason to believe that the amendment will be futile; Turner states that the purpose for the
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amendment would be to remove from his petition claims that are not exhausted in state
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court. The Court finds that granting Turner, who brings this action pro se, leave to amend
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at this point in this case is in the interest of justice.
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Respondents correctly point out that Turner has not proffered a proposed
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amended petition with his motion for leave to amend. See LR 15-1. Under the
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circumstances here, however, the Court will waive that requirement. There has not yet
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been a motion to dismiss adjudicated; the question of the procedural viability of all of
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Turner’s claims remains open.
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Given Turner’s expressed reason for seeking to amend, the early stage of this
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action, and the fact that there has not yet been a motion to dismiss adjudicated, the Court
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finds that there is no significant danger of unfair prejudice to respondents and there will
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be no undue delay if Turner amends. The Court will grant Turner’s motion for leave to
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amend his petition. The amendment will render moot the pending motion to dismiss, and
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that motion will be denied, without prejudice, on that basis. Turner’s motion for extension
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of time is unnecessary, as there is currently no deadline to be extended. That motion will
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be denied. However, the Court takes into consideration that Turner requests sixty days
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to file his amended petition.
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It is therefore ordered that petitioner’s Motion to Amend Petition for Writ of Habeas
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Corpus (ECF No. 21) is granted. Petitioner will have sixty (60) days from the date of entry
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of this order to file an amended petition for writ of habeas corpus.
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It is further ordered that the Clerk of the Court will send to petitioner, along with a
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copy of this order, three copies of the blank form for a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254. On that form, when drafting his amended petition, Turner
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should write the word “Amended” above the word “Petition” in the caption on the first
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page.
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It is further ordered that respondents’ Motion to Dismiss (ECF No. 10) is denied as
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moot. The denial of this motion is without prejudice to respondents asserting any of the
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same arguments in a motion to dismiss the anticipated amended petition.
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It is further ordered that petitioner’s Motion for Enlargement of Time (ECF No. 24)
is denied, as it is unnecessary.
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DATED THIS 17th day of October 2017.
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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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