(HC) Herrera v. Matteson ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ARMANDO E. HERRERA, Case No. 1:19-cv-01150-NONE-HBK 12 Petitioner, ORDER GRANTING PETITIONER’S MOTION TO AMEND PETITION 13 v. (Doc. No. 19) 14 ROBERT NOUSHMEN, ORDER DISMISSING AS MOOT 15 Respondent. RESPONDENT’S MOTION TO DISMISS AND PETITIONER’S MOTION TO STAY 16 (Doc. Nos. 11, 16) 17 ORDER REQUIRING RESPONSE TO 18 AMENDED PETITION FOR WRIT OF HABEAS CORPUS, SETTING BRIEFING 19 SCHEDULE, AND DIRECTING SERVICE OF DOCUMENTS 20 (Doc. No. 20) 21 22 I. FACTS AND BACKGROUND 23 Petitioner Armando E. Herrera, a state prisoner, has pending a pro se petition for writ of habeas 24 corpus under 28 U.S.C. § 2254. (Doc. No. 1). On May 12, 2020, respondent moved to dismiss the 25 petition, arguing that because some of petitioner’s claims are unexhausted the petition is subject to 26 dismissal. (Doc. No. 11). On June 4, 2020, petitioner moved for a stay and abeyance of his petition for 27 the purpose of exhausting his unexhausted claims before the state courts. (Doc. No. 16). Respondent 28 opposed petitioner’s motion to stay. (Doc. No. 17). On July 14, 2020, this court issued an order to 1 show cause why petitioner’s motion to stay should not be denied. (Doc. No. 18). In that order, the 2 court explained the “good cause” requirement petitioner must meet in order to be granted a stay under 3 Rhines v. Weber, 544 U.S. 269, 277 (2005), or in the alternative, the timeliness requirements for a stay 4 under Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 2002). (Id. at 2-5). Additionally, the court 5 explained that petitioner may move to dismiss his unexhausted claims and proceed with his exhausted 6 claims only. (Id. at 5-6). In response to the order to show cause, petitioner filed a “motion to dismiss 7 unexhausted claims with amended petition” and an amended petition. (Doc. Nos. 19, 20). In his 8 motion, petitioner states that he is unsure he will meet the good cause requirement under Rhines or the 9 timeliness requirements of Kelly and accordingly wishes to proceed with his exhausted claims only. 10 (Doc. No. 19 at 1). 11 II. APPLICABLE LAW 12 “A habeas petition ‘may be amended or supplemented as provided in the rules of 13 procedure applicable to civil actions.’” Alfaro v. Johnson, 862 F.3d 1176, 1183 (9th Cir. 2017) 14 (quoting 28 U.S.C. § 2242); see also R. Governing Section 2254 Cases 12 (recognizing general 15 applicability of rules of civil procedure in habeas cases). “[A] party may amend its pleading only 16 with the opposing party’s written consent or the court’s leave. The court should freely give leave 17 when justice so requires.” See Fed. R. Civ. P. 15(a)(2). An amended petition supersedes the 18 original petition, “the latter being treated thereafter as non-existent.” Loux v. Rhay, 375 F.2d 55, 19 57 (9th Cir. 1967); Lacey v. Maricopa County, 693 F. 3d 896, 907 n.1 (9th Cir. 2012) (en banc); 20 L.R. 220. 21 III. ANALYSIS 22 The court will construe petitioner’s “motion to dismiss unexhausted claims with amended 23 petition” as a motion to amend his petition. (Doc. No. 19). Because this court is to “freely give leave” 24 to amend a petition “when justice so requires,” the court will grant petitioner’s motion to amend and 25 accordingly deems the amended petition as the operative petition in this case. (Doc. No. 20); Fed. R. 26 Civ. P. 15(a)(2). In light of the amended petition, respondent’s motion to dismiss (Doc. No. 11) and 27 petitioner’s motion to stay (Doc. No. 16) are now moot. 28 The amended petition (Doc. No. 20) is now before the court for preliminary review under Rule 1 4 of the Rules Governing Section 2254 Cases. Under Rule 4, the judge assigned to the habeas 2 proceeding must examine the habeas petition and order a response to the petition unless it “plainly 3 appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th 4 Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). It does not plainly appear that 5 petitioner is not entitled to relief. Therefore, the court will order the respondent to respond to the 6 amended petition, set a briefing schedule, and direct service of documents. 7 Accordingly, it is ORDERED: 8 1. Petitioner’s motion to amend petition (Doc. No. 19) is GRANTED. 9 2. Respondent’s motion to dismiss (Doc. No. 11) is DISMISSED as moot. 10 3. Petitioner’s motion to stay (Doc. No. 16) is DISMISSED as moot. 11 4. Within sixty days of the date of service of this order, respondent must file a response to 12 the amended petition. 13 5. A response may be one of the following: 14 a. An answer addressing the merits of the petition. Any argument by respondent 15 that petitioner has procedurally defaulted a claim must be raised in the answer, 16 which must also address the merits of petitioner’s claims. 17 b. A motion to dismiss the petition. 18 6. Within sixty days of the date of service of this order, respondent must file all transcripts 19 and other documents necessary for resolving the issues presented in the petition. See R. 20 Governing Section 2254 Cases 5(c). 21 7. If respondent files an answer to the petition, petitioner may file a reply within thirty 22 days of the date of service of respondent’s answer. If no reply is filed within thirty days, 23 the petition and answer are deemed submitted. 24 8. If respondent moves to dismiss, petitioner must file an opposition or statement of non- 25 opposition within twenty-one days of the date of service of respondent’s motion. Any 26 reply to an opposition to the motion to dismiss must be filed within seven days after the 27 opposition is served. The motion to dismiss will be considered submitted twenty-eight 28 1 days after the service of the motion or when the reply is filed, whichever comes first. 2 See Local Rule 230d). 3 9. Respondent must complete and return to the court within thirty days a form stating 4 whether respondent consents or declines to consent to the jurisdiction of a United States 5 Magistrate Judge under 28 U.S.C. § 636(c)(1). 6 10. The clerk of the court is directed to serve a copy of this order on the state attorney 7 general or the state attorney general’s representative. 8 9 IT IS SO ORDERED. Dated: March 9, 2021 Mile. Wh fareh Zaskth 11 HELENA M. BARCH-KUCHTA 0 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28