Gaytan-Gonzalez v. Benov
Filing
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ORDER Granting 6 Motion to File Amended Petition and Directing Clerk of Court to Send Blank 2241 Form Petition signed by Magistrate Judge Michael J. Seng on 11/28/2011. Amended Complaint due by 1/3/2012. (Attachments: # 1 2241 Petition Form) (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JAMIE GUSTAVO GAYTAN-GONZALEZ, 1:11-cv-00965 AWI MJS HC
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ORDER GRANTING LEAVE TO AMEND
TO FILE AMENDED PETITION AND
DIRECTING CLERK OF COURT TO SEND
BLANK § 2241 FORM PETITION
Petitioner,
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v.
[Doc. 6]
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MICHAEL L. BENOV,
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Respondent.
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Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas
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corpus pursuant to 28 U.S.C. § 2241.
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Petitioner filed the instant petition for writ of habeas corpus on June 13, 2011. (Pet.,
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ECF No. 1.) On November 22, 2011, Petitioner filed a motion to amend the petition. (Mot.,
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ECF No. 6.) Rule 15(a) of the Federal Rules of Civil Procedure provides, in relevant part:
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(1) Amending as a Matter of Course. A party may amend its
pleading once as a matter of course: (A) 21 days after serving
it, or (B) if the pleading is one to which a responsive pleading
is required, 21 days after service of a responsive pleading or
21 days after service of a motion under Rule 12(b), (e), or (f),
whichever is earlier.
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Petitioner may amend as a matter of course up to 21 days after a responsive
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pleading or motion is filed. Respondent has yet to file a response. Accordingly, Petitioner's
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motion to file an amended petition is GRANTED.
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Petitioner is forewarned that Rule 2 of the "Rules Governing Section 2254 Cases"
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provides that the petition “... must specify all the grounds for relief available to the
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petitioner; state the facts supporting each ground; state the relief requested...” Rule 2 of
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the Rules Governing 2254 Cases. Rule 2 further provides that the petition “must
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substantially follow either the form appended to these rules or a form prescribed by a local
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district-court rule. The clerk must make forms available to petitioners without charge.” Id.
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at 2(c).
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In addition, Rule 4 of the Rules Governing § 2254 Cases requires the Court to make
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a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a
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petition "[i]f it plainly appears from the petition . . . that the petitioner is not entitled to relief."
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Rule 4 of the Rules Governing 2255 Cases; see also Hendricks v. Vasquez, 908 F.2d 490
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(9th Cir. 1990).
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Petitioner is advised that an amended petition supercedes the original petition,
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Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d
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565, 567 (9th Cir. 1987), and must be "complete in itself without reference to the prior or
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superceded pleading." Local Rule 220. Accordingly, Petitioner's last filed amended petition
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must contain all the claims Petitioner wishes to present before the Court. Plaintiff is warned
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that "[a]ll causes of action alleged in an original complaint which are not alleged in an
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amended complaint are waived." King, 814 F.2d at 567 (citing to London v. Coopers &
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Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)). The Court will grant Petitioner leave to
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determine the pleadings and exhibits he wishes to include in the instant petition.
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Accordingly, it is HEREBY ORDERED that:
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1.
Petitioner is GRANTED thirty (30) days from the date of service of this Order
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to SUBMIT an AMENDED PETITION. The amended petition should be
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clearly and boldly titled “AMENDED PETITION,” contain the appropriate case
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number, and be an original signed under penalty of perjury;
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2.
The Clerk of Court is DIRECTED to send Petitioner a blank form petition for
petitioners filing pursuant to 28 U.S.C. § 2241; and,
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Petitioner is forewarned that his failure to comply with this order may result
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in a Recommendation that the petition be dismissed pursuant to Local Rule
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110.
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IT IS SO ORDERED.
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Dated:
ci4d6
November 28, 2011
Michael J. Seng
/s/
UNITED STATES MAGISTRATE JUDGE
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