(HC) Gonzalez v. Sexton ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LUIS MIGUEL GONZALEZ, Case No. 1:18-cv-00039-DAD-JDP 12 Petitioner, ORDER DIRECTING EXPANSION OF THE RECORD 13 v. ORDER SETTING BRIEFING SCHEDULE 14 MICHAEL SEXTON, 15 Respondent. 16 17 Petitioner Luis Miguel Gonzalez, a state prisoner, seeks a writ of habeas corpus under 28 18 U.S.C. § 2254. ECF No. 1. On March 4, 2019, this court denied respondent’s motion to dismiss 19 the petition as time-barred. ECF No. 23. Petitioner then moved for leave to conduct discovery. 20 ECF No. 18 at 38-40. We granted petitioner’s motion and appointed counsel for petitioner for the 21 limited purposes of obtaining discovery. ECF No. 24. Specifically, petitioner sought a copy of 22 the case file relating to his state appellate case that was maintained by his previous counsel. See 23 id. at 1. On January 6, 2020, a copy of petitioner’s state appellate case file was delivered to this 24 court and subsequently given to petitioner’s counsel. Now that the limited scope discovery has 25 been completed in this case, we will allow petitioner to file an amended petition and order 26 respondent to file an answer to the amended petition. 27 The amended petition will supersede the original petition, Lacey v. Maricopa County, 693 28 F. 3d 896, 907 n.1 (9th Cir. 2012) (en banc), and the amended petition must be complete on its 1 face without reference to the prior, superseded petition, see E.D. Cal. Local Rule 220. Petitioner 2 may not change the nature of his petition by adding new, unrelated claims. See George v. Smith, 3 507 F.3d 605, 607 (7th Cir. 2007). Once an amended petition is filed, the original petition no 4 longer serves any function. Therefore, in an amended petition, as in an original petition, 5 petitioner must assert each claim in sufficient detail. The amended petition should be titled “First 6 Amended Petition” and refer to the appropriate case number. 7 Additionally, this court may “direct the parties to expand the record by submitting 8 additional materials” related to the petition. Rules Governing Section 2254 Cases, rule 7(a). We 9 must then “give the party against whom the additional materials are offered an opportunity to 10 admit or deny their correctness.” Id. at 7(c). To the extent petitioner wishes to have any of the 11 documents obtained through discovery considered part of the record of this case, he should file 12 these documents. Respondent may then admit or deny the correctness of these documents. 13 Order 14 1. Within sixty days of the date of service of this order, petitioner may file an 15 amended petition and any documents obtained through discovery which are 16 necessary for resolving the issues presented in the amended petition. 17 2. Within thirty days of petitioner’s filing of supplemental pleadings, respondent 18 must file an answer to the amended petition addressing the merits. Respondent 19 may admit or deny the correctness of any additional documents submitted by 20 petitioner in support of his amended petition. 21 3. Within sixty days of the date of service of this order, respondent must file all 22 transcripts and other documents necessary for resolving the issues presented in the 23 petition. See Rules Governing Section 2254 Cases, Rule 5(c). 24 4. Petitioner may file a traverse within thirty days of the date of service of 25 respondent’s answer. If no traverse is filed within thirty days, the amended 26 petition and answer are deemed submitted. 27 28 1 > IT IS SO ORDERED. ° y?, —N prssann — Dated: _ February 9, 2020 4 UNI STATES MAGISTRATE JUDGE 5 6 | No. 206. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28