(HC) Escalon v. K.V.S.P. Warden ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD VICTOR ESCALON, Case No. 1:19-cv-00722-LJO-SAB-HC 12 Petitioner, ORDER GRANTING IN PART RESPONDENT’S REQUEST FOR 13 v. DISCHARGE OF ORDER REGARDING ORIGINAL PETITION AND REQUEST 14 K.V.S.P. WARDEN, FOR SCREENING OF AMENDED PETITION 15 Respondent. ORDER DISCHARGING ORDER TO FILE 16 RESPONSE TO PETITION 17 ORDER GRANTING PETITIONER LEAVE TO AMEND 18 ORDER DIRECTING CLERK OF COURT 19 TO SEND PETITIONER BLANK § 2254 FORMS 20 (ECF Nos. 6, 15) 21 22 23 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 24 pursuant to 28 U.S.C. § 2254. 25 I. 26 BACKGROUND 27 On May 23, 2019, Petitioner filed a federal petition for writ of habeas corpus challenging his 2014 Fresno County conviction for first-degree murder on the grounds that: (1) the trial court 1 prejudicially erred by failing to sua sponte instruct on the lesser-included offense of attempted 2 murder; and (2) the appellate court erred in affirming the judgment with respect to the lesser- 3 included offense instruction. (ECF No. 1). On May 28, 2019, the Court ordered Respondent to 4 file a response to the petition. (ECF No. 6). 5 On July 15, 2019, Petitioner filed a document entitled “Memorandum of Points and 6 Authorities in Support of Answer to Order to Show Cause.”1 (ECF No. 11). Therein, Petitioner 7 includes the following additional claims for habeas relief: (1) erroneous admission of prejudicial 8 photographs; (2) prosecutorial misconduct; (3) erroneous admission of prejudicial predisposition 9 evidence; (4) ineffective assistance of counsel; and (5) cumulative effects of errors. (ECF No. 11 10 at 2–3).2 11 On July 30, 2019, the Court granted Respondent’s motion for extension of time to file an 12 answer. (ECF Nos. 12, 13). On August 26, 2019, Respondent filed the instant request to: (1) 13 discharge the order to respond to the original petition; (2) deem Petitioner’s memorandum a 14 proposed first amended petition and request to amend; and (3) screen the first amended petition 15 and issue a new order to respond as appropriate. (ECF No. 15). 16 II. 17 DISCUSSION 18 Given that Petitioner’s memorandum raises additional claims for habeas relief that were 19 not included in the original petition, the Court construes the memorandum as a motion to amend 20 the petition. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is ‘to be 21 liberally construed.’”); Castro v. United States, 540 U.S. 375, 381–82 (2003) (finding courts may 22 recharacterize a pro se motion to “create a better correspondence between the substance of a pro 23 se motion’s claim and its underlying legal basis”); Woods v. Carey, 525 F.3d 886 (9th Cir. 2008) 24 (holding that when a pro se petitioner files a new petition while an earlier petition is still 25 pending, the district court should construe the new petition as a motion to amend the pending 26 petition). 27 1 The Court notes that no order to show cause has been issued in this matter. 1 “A party may amend its pleading once as a matter of course within: (A) 21 days after 2 serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after 3 service of a responsive pleading.” Fed. R. Civ. P. 15(a)(1). The Ninth Circuit has held that 4 “Federal Rule of Civil Procedure 15(a), which allows litigants to amend their pleadings once ‘as 5 a matter of course’ before a responsive pleading has been filed, applies to habeas corpus 6 actions.” Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir. 2000). No responsive pleading has 7 been filed yet in the instant case, and thus, Petitioner is entitled to amend his pleading once as a 8 matter of course. 9 Respondent requests that the Court construe the memorandum not only as a motion to 10 amend but also as a proposed first amended petition. (ECF No. 15 at 2). However, Rule 2(c)(5) 11 of the Rules Governing Section 2254 Cases states that a petition must “be signed under penalty 12 of perjury by the petitioner.” Rule 2(d) further provides that “[t]he petition must substantially 13 follow either the form appended to these rules or a form prescribed by a local district-court rule.” 14 Here, although Petitioner signed the proof of service under penalty of perjury, Petitioner did not 15 sign the memorandum under penalty of perjury as required by Rule 2(c)(5). 16 Based on the foregoing, the Court will construe Petitioner’s memorandum as a motion to 17 amend the petition but not as a proposed first amended petition. 18 III. 19 ORDER 20 Accordingly, the Court HEREBY ORDERS that: 21 1. Respondent’s request for discharge of order regarding original petition and screening of 22 amended petition (ECF No. 15) is GRANTED IN PART; 23 2. The order to respond (ECF No. 6) is DISCHARGED; 24 3. Petitioner is GRANTED leave to amend the petition; 25 4. Within thirty (30) days of the date of service of this order, Petitioner shall either: 26 a. file a first amended petition that is signed under penalty of perjury and includes 27 all his claims for habeas relief; OR 1 court prejudicially erred by failing to sua sponte instruct on the lesser-included 2 offense of attempted murder, and (2) the appellate court erred in affirming the 3 judgment with respect to the lesser-included offense instruction; and 4 5. The Clerk of Court is DIRECTED to send Petitioner blank § 2254 habeas forms. 5 6 IT IS SO ORDERED. OF. nf ee 7 | Dated: _September 10, 2019 _ ef UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28