Brooks v. Warner

Filing 45

ORDER granting Petitioner's 37 Motion to Lift Stay and Amend Petition, and Setting Briefing Schedule. Petitioner's proposed amended petition (Dkt. 43 ) is hereby deemed filed as petitioner's amended petition. Respondent's ans wer to the amended petition is due on or before March 14, 2025. Respondent is directed to note their answer for April 11, 2025. Petitioner's response to the answer is due on or before April 4, 2025. Respondent may file a reply to petitioner's response on or before April 11, 2025. Signed by Judge Theresa L Fricke.**3 PAGE(S), PRINT ALL**(John Brooks, Prisoner ID: 403472)(MW)

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1 2 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 4 5 6 JOHN MICHAEL BROOKS, 7 8 9 v. Petitioner, JACK WARNER, Respondent. 10 11 Case No. 3:22-cv-05486-JLR-TLF ORDER GRANTING MOTION TO LIFT STAY AND AMEND PETITION AND SETTING BRIEFING SCHEDULE The District Court has referred this 28 U.S.C. § 2254 action to United States 12 Magistrate Judge Theresa L. Fricke. Currently before the Court is petitioner John 13 Michael Brooks’ motion to lift stay and for leave to file an amended petition for writ of 14 habeas corpus (Dkt. 37) and petitioner’s subsequently filed proposed amended petition 15 (Dkt. 43). After review of the motion and the relevant record, the motion (Dkt. 37) is 16 granted. 17 BACKGROUND 18 On July 1, 2022, petitioner signed his petition for writ of habeas corpus under 28 19 U.S.C. § 2254. Dkt. Petitioner challenges his custody under a Cowlitz County Superior 20 Court judgment and sentence. Dkts. 1-1, 8. On July 29, 2022, the Court issued an order 21 to show cause that the petition contained both exhausted and unexhausted claims, and 22 directing petitioner to notify the Court of his choice to either: (1) dismiss the mixed 23 petition without prejudice, allowing him to present his unexhausted claim in state court 24 25 ORDER GRANTING MOTION TO LIFT STAY AND AMEND PETITION AND SETTING BRIEFING SCHEDULE - 1 1 and then return to federal court to file a new habeas petition containing all of his claims; 2 (2) stay the mixed petition to allow the petitioner to present his unexhausted claims to 3 the state court and then return to the federal court for review of his perfected petition; or 4 (3) delete the unexhausted claim and proceed with the remaining exhausted claims. 5 Dkt. 4. On August 3, 2022, petitioner filed a response requesting that the action be 6 stayed. Dkt. 5. The respondent agreed to a stay of the action. Dkt. 16. On December 7 12, 2022, the Court issued an order granting the motion to stay and abey proceedings. 8 Dkt. 17. 9 On August 31, 2024, petitioner filed the pending motion requesting the Court lift 10 the stay and grant him leave to file an amended petition to include, it appears, his 11 previously unexhausted claim. Dkt. 37. 12 13 14 On January 11, 2025, petitioner filed a complete, signed, and dated, proposed amended petition. Dkt. 43. DISCUSSION 15 Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, 16 (1) Amending as a Matter of Course A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. 17 18 19 20 21 22 23 24 25 (2) Other Amendments In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires. While it appears petitioner cannot amend as a matter of course at this time, respondent has filed a response to the motion to lift the stay and for leave to file an amended petition stating they do not oppose the motion and did not object to ORDER GRANTING MOTION TO LIFT STAY AND AMEND PETITION AND SETTING BRIEFING SCHEDULE - 2 1 petitioner’s subsequently filed proposed amended petition. Dkt. 38. Further, as this is 2 a habeas corpus action, the Court finds justice requires allowing petitioner to amend. 3 Therefore, petitioner’s motion (Dkt. 37) is GRANTED. The stay is lifted. 4 Petitioner’s proposed amended petition (Dkt. 43) is hereby deemed filed as 5 petitioner’s amended petition. 6 7 8 Respondent has requested 45 days to respond to the amended petition. Dkt. 38. Therefore, the Court orders the following briefing schedule: (1) Respondent’s answer to the amended petition is due on or before March 14, 9 2025. Respondent is directed to note their answer for April 11, 2025. 10 (2) Petitioner’s response to the answer is due on or before April 4, 2025. 11 (3) Respondent may file a reply to petitioner’s response on or before April 11, 2025. 12 The Clerk is directed to docket petitioner’s proposed amended petition (Dkt. 43) 13 as petitioner’s amended petition. As the amended petition supersedes the petition, the 14 original petition is deemed moot. 15 16 17 The Clerk is directed to send a copy of this order to petitioner and counsel for respondent. Dated this 28th day of January, 2025. 18 19 A 20 Theresa L. Fricke United States Magistrate Judge 21 22 23 24 25 ORDER GRANTING MOTION TO LIFT STAY AND AMEND PETITION AND SETTING BRIEFING SCHEDULE - 3

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