BENNETT v. GLUNT et al

Filing 18

ORDER denying 16 Motion Leave to file an Amended Habeas Petition albeit without prejudice to Petitioner filing a New Motion for Leave to File an Amended Habeas Petition and attaching thereto the proposed Amended Habeas Petition. Petitioner is giv en until June 15, 2014 in which to do so. Failure to file the New Motion for Leave to File an Amended Habeas Petition along with the proposed Amended Habeas Petition will result in Petitioner being deemed to have withdrawn the request to amend. Signed by Magistrate Judge Maureen P. Kelly on 5/20/2014. A copy of the Order along with this Notice of Electronic Filing is being sent to Petitioner at his address of record via first class mail. (tmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DAVALIN CHARLES BENNETT,
Petitioner,

)
)
)
vs.
)
)
STEPHEN A. GLUNT; CATHLEEN
)
CANE, The Attorney General of the State )
of Pennsylvania,
)
Respondents. )

Civil Action No. 13-1775
Magistrate Judge Maureen P. Kelly
Re: ECF No. 16

ORDER
Devalin Charles Bennett (“Petitioner”) has filed a “Motion for Leave to Supplement 28
U.S.C.A. § 2254 –State” (the “Motion”). In the Motion, Petitioner states that “[w]ithin the last
ten days, the petitioner has learned through an investigative research[er] acting on the
petitioner’s behalf that additional evidentiary support may exist in support of issues raised in the
petitioner’s habeas Corpus Petition and that misconduct during the prosecution of the petitioner
may have occurred, raising issues other than those presently raised in the petitioner’s Habeas
Corpus filing yet still ‘squarely’ fits within the range of his 6th Amendment violation claim.”
ECF No. 16 at 1, ¶ 1.1 Petitioner then seeks “leave to supplement his Habeas Corpus petition ...

1

Petitioner is warned that if he has discovered new evidence, or has new facts that he has not
presented to the State Courts, the federal doctrine of exhaustion requires that he present that new
evidence/facts to the State Courts first. Vasquez v. Hillery, 474 U.S. 254, 260 (1986)(holding
that new factual allegations presented for the first time in a federal habeas proceeding may
render a claim unexhausted if the new facts “fundamentally alter” the legal claim presented in
state court); Sampson v. Love, 782 F.2d 53 (6th Cir. 1986) (when new evidence presented in
support of a habeas claim places that claim in a “significantly different posture,” the state courts
must be given an opportunity to consider the claim in that posture). Petitioner is further warned
that under State law, he may only have 60 days from the discovery of the new evidence/facts in
which to file a new PCRA petition raising the new evidence/facts in the State Courts. 42 Pa.
C.S.A. § 9545(b)(2).

for the petitioner to sufficiently and fully assert all the grounds upon which his Habeas Corpus
petition should be granted.” Id., at 2, ¶ 3.
We deem Petitioner’s Motion to constitute a Motion for Leave to File an Amended
Habeas Corpus Petition.

Deemed as such, the Motion is hereby DENIED, albeit without

prejudice to Petitioner re-filing the Motion for Leave to File an Amended Habeas Petition and
attaching thereto, a proposed Amended Habeas Petition, in order for the court to be able to
evaluate whether leave to file an Amended Habeas Petition should be granted or not. See, e.g.,
Borrero v. Glunt, Civ.A.No. 12–153J, 2012 WL 6045225, at *1(W.D.Pa., Dec. 5, 2012)
(“Plaintiff filed a Motion To Amend/Correct the Complaint, ECF No. 9, which was denied
without prejudice to him filing a second motion for leave to amend but with the proposed
amended complaint attached thereto.”).
Accordingly, the Motion is hereby DENIED without prejudice to Petitioner filing his
Motion for Leave to File An Amended Habeas Petition with the proposed Amended Habeas
Petition attached as an exhibit to the Motion. Petitioner must file the new Motion for Leave to
File an Amended Habeas Petition with the proposed Amended Habeas Petition attached no later
than June 15, 2014. Failure to do so, will result in the currently pending habeas Petition being
deemed the operative Petition and Petitioner being deemed to have withdrawn the request to
amend.

BY THE COURT:
s/ Maureen P. Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE

2

cc:

Davalin Charles Bennett
DX-9353
SCI Houtzdale
P.O. Box 1000
Houtzdale, PA 16698-1000
All Counsel of Record Via CM-ECF

3