(HC) Espindola v. Gamboa ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANDRES ESPINDOLA, ) Case No.: 1:21-cv-01255-NONE-JLT (HC) ) 12 Petitioner, ) ORDER GRANTING PETITIONER’S MOTION ) TO AMEND PETITION (Doc. 7) 13 v. ) ) ORDER SUSPENDING BRIEFING SCHEDULE 14 MARTIN GAMBOA, Warden of Avenal State ) (Doc. 5) Prison, 15 Respondent. ) ) [THIRTY-DAY DEADLINE] 16 ) 17 Petitioner filed a federal petition for writ of habeas corpus on August 18, 2021, raising one 18 claim of instructional error. (Doc. 1.) Following a preliminary review of the petition, on August 20, 19 2021, the Court issued a briefing schedule and directed Respondent to file a response to the petition. 20 (Doc. 5.) Respondent has not yet filed a response to the petition. 21 On August 27, 2021, Petitioner filed the instant motion to amend the petition. (Doc. 7.) A 22 petitioner may amend a petition for writ of habeas corpus once “as a matter of course,” and without 23 leave of Court, before a response has been filed under Federal Rule of Civil Procedure 15(a), as 24 applied to habeas corpus actions pursuant to 28 U.S.C. § 2242 and Rule 11 of the Rules Governing 25 Section 2254 Cases. Calderon v. United States District Court (Thomas), 144 F.3d 618, 620 (9th Cir. 26 1998); Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). A review of the record indicates that no 27 responsive pleading has been filed. Therefore, Petitioner may amend his petition. 28 /// 1 ORDER 2 Accordingly, the Court ORDERS that: 3 1. Petitioner’s motion to amend his petition (Doc. 7) is GRANTED; 4 2. The briefing schedule set forth in the Court’s order of August 20, 2021 (Doc. 5) is 5 SUSPENDED; and 6 3. Within thirty days of the date of service this order, Petitioner shall submit an amended 7 petition. Petitioner is advised that he should caption his pleading, “First Amended 8 Petition,” and he should reference the instant case number. If Petitioner does not submit 9 an amended petition within the allotted time, the Court will proceed with the original 10 petition. 11 12 IT IS SO ORDERED. 13 Dated: August 30, 2021 _ /s/ Jennifer L. Thurston 14 CHIEF UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28