Buzzard v. Uttecht ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 RONALD BUZZARD, JR., CASE NO. 2:21-cv-01061-JCC-JRC 11 Petitioner, ORDER DENYING MOTION TO 12 v. AMEND 13 JEFFREY UTTECHT, 14 Respondent. 15 16 Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. Dkt. 6. 17 Before the Court is petitioner’s motion to amend the petition. Dkt. 15. As discussed below, the 18 Court denies without prejudice this motion. 19 The Federal Rules of Civil Procedure apply to § 2254 proceedings “to the extent they are 20 not inconsistent with any statutory provisions” or the Rules Governing § 2254 Cases (“§ 2254 21 Rules”). Rule 12, § 2254 Rules. Generally, Federal Rule of Civil Procedure 15(a) gives a 22 plaintiff “the right to amend once as a matter of course” until 21 days after the defendant files a 23 responsive pleading. See Fed. R. Civ. P. 15(a) advisory committee note to 2009 amendment; 24 Ramirez v. Cty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). A § 2254 petition must 1 “substantially follow” this Court’s form for § 2254 actions. Rule 2(d), § 2254 Rules. The form 2 elicits specific information with respect to, among other things, exhaustion of state court 3 remedies. 4 “Before a federal court may grant habeas relief to a [petitioner], the [petitioner] must 5 exhaust his remedies in state court,” which means that “the [petitioner] must give the state courts 6 an opportunity to act on his claims before he presents those claims to a federal court in a habeas 7 petition.” O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Usually, a petitioner’s federal 8 habeas petition should be dismissed if the petitioner “has not exhausted available state remedies 9 as to any of his federal claims.” Coleman v. Thompson, 501 U.S. 722, 731 (1991) (citations 10 omitted). And, if a petition contains exhausted and unexhausted claims, courts must, except in 11 limited circumstances, “delete the unexhausted claims” from the petition. See Rhines v. Weber, 12 544 U.S. 269, 277–78 (2005). 13 Here, petitioner did not need this Court’s permission to file an amended petition. 14 Generally, he has a right to do so until 21 days after respondent answers. However, petitioner did 15 not file his proposed amended petition on this District’s form. Although (excluding its title page, 16 signature page, and table of contents) the petition is 39-pages long, it does not substantially 17 follow the form, partly because it does not provide the information about exhaustion of state 18 court remedies that the form elicits. Therefore, the proposed amended petition is deficient. 19 Accordingly, the Court ORDERS as follows: 20 1. The Court DENIES WITHOUT PREJUDICE petitioner’s motion to amend 21 (Dkt. 15) and STRIKES the proposed amended petition (Dkt. 16). 22 2. On or before October 20, 2021, petitioner may, if he wishes, file an amended 23 petition that cures the deficiencies identified in this order. 24 1 3. The amended petition, if filed, must be filed on this District’s § 2254 form, 2 legibly written or retyped in its entirety, and filled out completely. Furthermore, the amended 3 petition must contain case number 2:21-cv-01061-JCC-JRC. 4 4. The amended petition, if filed, will act as a complete substitute for the petition; 5 the Court will address only the claims alleged in it. 6 5. The amended petition, if filed, must not incorporate by reference any part of the 7 petition. Likewise, the amended petition must not incorporate arguments or text from any other 8 documents, including any exhibits. However, petition may, if he wishes, submit any exhibit 9 necessary to support the amended petition’s allegations. 10 6. If petitioner files an amended petition, and if he requires additional space to 11 articulate his claims, he may submit no more than ten (10) continuation sheets. Any continuation 12 sheet, whether handwritten or typewritten, must comply with this District’s Local Rules 13 governing form of filings, including rules governing text size, margin size, and line spacing. See 14 Local Rule 10(d)–(e). 15 The Clerk is directed to SEND petitioner the appropriate forms for filing a § 2254 action 16 and a copy of this order. 17 Dated this 20th day of September, 2021. A 18 19 J.Richard Creatura Chief United States Magistrate Judge 20 21 22 23 24