(HC) Clarke v. Trate ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SWAIN CLARKE, No. 1:22-cv-00820-BAK 12 Petitioner, ORDER GRANTING PETITIONER’S MOTION TO AMEND PETITION 13 v. (Doc. No. 8) 14 B. TRATE, 15 Respondent. 16 17 Petitioner Swain Clarke, a federal prisoner initiated this action by filing a pro se petition 18 for writ of habeas corpus under 28 U.S.C. § 2241 on July 5, 2022 while incarcerated at U.S. P. 19 Atwater. (Doc. No. 1). On August 17, 2022, the Petitioner moved to amend his petition.1 (Doc. 20 No. 8). Respondent has not filed a response to the Petition. 21 The Federal Rules of Civil Procedure are to be applied to habeas proceedings, to the 22 extent that they are not inconsistent with the habeas statutory provisions and habeas rules. Rules 23 24 1 The petition contains two grounds: (1) Petitioner was denied due process in connection with 25 disciplinary infractions that occurred at U.S. P. Ellenwood (Ground One); and (2) Petitioner was denied effective assistance of appellate counsel in connection with his conviction entered by the 26 United States District Court in the Northern District of Maryland (Ground Two). Ground One is 27 properly pursued under 28 U.S.C. § 2241 and should be filed in the court where Petitioner is incarcerated. Ground two must be pursued under 28 U.S.C. § 2555 in the court of conviction, not 28 the court of incarceration. 1 | Governing Section 2254 Cases in the United States District Court, R.12.? Consequently, pursuant 2 | to Rule 15(a), Petitioner may amend his petition “once as a matter of course” before a responsive 3 | pleading is filed. Fed. R. Civ. P. 15(a). The Court’s acceptance of the filing of the amended 4 | petition, however, should not be implied as waiver of Fed. R. Civ. P. 15(c) or of the one-year 5 || federal statute of limitations set forth in 28 U.S.C. § 2244(d). 6 Should Petitioner file an amended petition, he is advised that the amended petition will 7 | supersede the original petition and become the operative pleading. See Lacey v. Maricopa 8 | County, 693 F.3d. 896, 907 n.1 (9th Cir. 2012) (en banc). It must be complete without reference 9 | to the prior petition or any superseded pleading, and must include all grounds for relief and 10 | supporting facts. See also Local Rule 220. The Court does not accept piecemeal pleadings. The 11 } Court will conduct a Rule 4 preliminary review of the amended petition once filed. 12 Accordingly, it is ORDERED: 13 1. Petitioner’s Motion to Amend his Petition (Doc. No. 8) is GRANTED. 14 2. Petitioner shall deliver his First Amended Petition to correctional officials for mailing 15 no later than September 30, 2022. Petitioner must use this case number and title the 16 form “First Amended Petition.” 17 | Dated: _ August 28, 2022 Mile. Wh fareh Zaskth 19 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 |_| — Rule | specifically recognizes the court “may apply any or all of these rules to a habeas corpus 28 | petition not covered by Rule 1(a).”