(HC) Hernandez v. Trate ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JAIRO JOAQUIN HERNANDEZ, Case No. 1:22-cv-01115-ADA-SAB-HC 11 Petitioner, ORDER GRANTING IN PART PETITIONER’S MOTION FOR 12 v. EXTENSION OF TIME TO FILE SECOND AMENDED PETITION 13 B.M. TRATE, (ECF No. 17) 14 Respondent. 15 16 Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus 17 pursuant to 28 U.S.C. § 2241. 18 Petitioner is currently incarcerated at the United States Penitentiary in Atwater, 19 California. (ECF No. 7 at 2.)1 On September 1, 2022, Petitioner filed a petition for writ of habeas 20 corpus pursuant to 28 U.S.C. § 2241 in this Court, asserting that he is actually innocent of 18 21 U.S.C. § 924(c)(1)(A)(iii) and (c)(3)(B) in light of United States v. Davis, 139 S. Ct. 2319 22 (2019). (ECF No. 1.) On September 13, 2022, the Court granted Petitioner leave to file an 23 amended petition because Petitioner had not provided the Court with sufficient facts to enable 24 the Court to determine whether Davis is applicable and Respondent should be ordered to show 25 cause why the writ should not be granted. (ECF No. 3.) 26 On October 11, 2022, Petitioner filed the first amended petition (“FAP”). (ECF No. 7.) 27 On November 18, 2022, the Court issued findings and recommendation recommending summary eee RO OSI IIE IIE II NEO IEEE I OIE I IGE UII II OE 1 | dismissal of the FAP because the “record is clear that Petitioner had the opportunity to raise his 2 | Davis claims in his authorized successive § 2255 motion. Therefore, the Court finds that 3 | Petitioner has not established that he ‘never had an “unobstructed procedural shot” at presenting 4 | this claim.’” (ECF No. 10 at 4 (quoting Ivy v. Pontesso, 328 F.3d 1057, 1060 (9th Cir. 2003).) 5 | On December 23, 2022, Petitioner filed objections. (ECF No. 13.) 6 On February 3, 2023, Petitioner requested leave to further amend the petition in light of 7 | the Supreme Court’s decision in Borden v. United States, 141 S. Ct. 1817 (2021). (ECF No. 14.) 8 | As the Court previously granted Petitioner leave to file a first amended petition pursuant to Rule 9 | 15(a)(2) and had yet to order Respondent to file a response to the petition, the Court found that 10 | Petitioner may amend his pleading once as a matter of course pursuant to Rule 15(a)(1). On 11 | April 7, 2023, the Court ordered that Petitioner may filed a second amended petition within thirty 12 | days of the date of service of the order. (ECF No. 15.) 13 On June 12, 2023, the Court received the instant “omnibus motion,” wherein Petitioner 14 | sets forth additional objections to the November 18, 2022 findings and recommendation and 15 | requests a ninety-day extension of time to file a second amended petition. Other than stating that 16 | Borden no longer provides an avenue for relief and that he intends to raise a double jeopardy 17 | claim, Petitioner does not provide any explanation as to why he needs ninety days to file a 18 | second amended petition. 19 Based on the foregoing, the Court HEREBY ORDERS that within FORTY-FIVE (45) 20 | days of the date of service of this order, Petitioner may file a second amended petition.” 21 IT IS SO ORDERED. DAM Le 23 | Dated: _June 14, 2023 _ OO UNITED STATES MAGISTRATE JUDGE 24 25 26 | ——_£—_—_—_ ? If Petitioner decides to file a second amended petition, he is advised that that a second amended petition supersedes 97 | the first amended petition. Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Petitioner’s second amended petition must be “complete in itself without reference to the prior or superseded pleading.” Local 28 | 2022 findings and recommendation, which recommended dismissal of he fist amended petition,