(HC) Graham v. Foss ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEVONTA B. GRAHAM, No. 2:19-cv-1485-KJM-EFB P 12 Petitioner, 13 v. ORDER 14 TAMMY FOSS, 15 Respondent. 16 17 Petitioner is a state prisoner who, proceeding without counsel, brings an application for a 18 writ of habeas corpus pursuant to 28 U.S.C. § 2254. The operative petition raises a single claim 19 alleging that the trial court erred in its admission of hearsay evidence. ECF No. 1 at 7-9. 20 Respondent’s answer, filed November 1, 2019, argues that the claim presents no cognizable 21 federal question and is otherwise meritless. ECF No. 17. 22 On April 22, 2020, long after the matter was submitted for decision, petitioner filed a 23 motion to amend. ECF No. 19. He state in the motion that he is developmentally disabled. Id. 24 He adds that his new cellmate is a certified paralegal and is willing to assist him in filing an 25 amended petition that raises cognizable claims alleging violations of his federal constitutional 26 rights. Id. He states that the jailhouse lawyer who assisted him with his original filing failed to 27 include any claims that would entitle him to relief in this court. Id. 28 ///// wOASe 2 LUV VETO ING VIE MVOC et PR eA eT 1 Because respondent previously filed an answer, petitioner may amend only by leave of 2 || court or respondent’s written consent. Fed. R. Civ. P. 15(a). Leave shall be freely given when 3 || justice so requires. AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir. 4 | 2006). In this instance, the court finds that it would be in the interests of justice to permit 5 || amendment. 6 Accordingly, IT IS ORDERED that: 7 1. Petitioner’s motion to amend (ECF No. 19) is GRANTED and petitioner may file an 8 amended petition within 30 days from the date of this order. The court will review 9 any amended petition pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing 10 Section 2254 Cases. If the court orders a response, respondent may file either an 11 answer or a motion. 12 2. If petitioner fails to file an amended petition, the matter will stand submitted on the 13 original petition (ECF No. 1) and November 1, 2019 answer (ECF No. 17). 14 | DATED: May 5, 2020. 15 Eg Vout 4 Lp 4H AL 16 EDMUND F. BRENNAN 4 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28