(HC) Maldonaldo v. J. Hartley, No. 1:2008cv01308 - Document 26 (E.D. Cal. 2009)

Court Description: ORDER ADOPTING FINDINGS and RECOMMENDATIONS re 23 Findings and Recommendations; ORDER GRANTING 15 Motion to Dismiss filed by James Hartley; ORDER STRIKING Amended Petition 24 ; ORDER REFERRING MATTER BACK TO MAGISTRATE JUDGE, signed by District Judge Lawrence J. O'Neill on 04/23/2009. (Martin, S)

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(HC) Maldonaldo v. J. Hartley Doc. 26 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 GEORGE MALDONADO, 7 Petitioner, 8 9 v. 10 J. HARTLEY, 11 Respondent. 12 ) ) ) ) ) ) ) ) ) ) ) ) 1:08-CV-01308 LJO GSA HC ORDER ADOPTING FINDINGS AND RECOMMENDATION [Doc. #23] ORDER GRANTING MOTION TO DISMISS [Doc. #15] ORDER STRIKING AMENDED PETITION [Doc. #24] ORDER REFERRING MATTER BACK TO MAGISTRATE JUDGE 13 14 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 15 pursuant to 28 U.S.C. § 2254. 16 On March 27, 2009, the Magistrate Judge issued a Findings and Recommendation that 17 recommended Respondent’s motion to dismiss be GRANTED and those claims concerning the 18 Governor’s 2005 decision be DISMISSED with prejudice for violating the statute of limitations. The 19 Findings and Recommendation was served on all parties and contained notice that any objections 20 were to be filed within thirty (30) days of the date of service of the order. 21 On April 14, 2009, Petitioner filed objections to the Findings and Recommendation. He also 22 filed a first amended petition. In his objections, he does not challenge the untimeliness of his claims 23 regarding the 2005 decision. Instead, he states he has now cured the defects in the original petition 24 by filing an amended petition raising only the timely claims. The Court has reviewed the first 25 amended petition and finds it suffers from the same defects noted in the Findings and 26 Recommendation. The first amended petition challenges the Governor’s 2005 decision extensively. 27 Further, the petition raises challenges to even more untimely claims concerning a 2003 parole 28 U .S. D istrict C ourt E. D . C alifornia cd 1 Dockets.Justia.com 1 decision. 2 Rule 15(a)(1)(A) of the Federal Rules of Civil Procedure allows a party to amend its pleading 3 once as a matter of course “before being served with a responsive pleading.” In this case, Respondent 4 filed a responsive pleading by filing a motion to dismiss the petition. Therefore, pursuant to Rule 5 15(a)(2) Petitioner may only amend his petition “with the opposing party’s written consent or the 6 court’s leave.” He has sought neither in this instance. 7 The instant first amended petition is unauthorized and raises claims that are untimely. 8 Therefore, the petition will be stricken. The habeas action will proceed on the original petition; 9 however, any claims challenging the Governor’s 2005 decision are DISMISSED WITH 10 PREJUDICE for violating the statute of limitations as stated in the Findings and Recommendation. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de 11 12 novo review of the case. Having carefully reviewed the entire file and having considered the 13 objections, the Court concludes that the Magistrate Judge's Findings and Recommendation is 14 supported by the record and proper analysis, and there is no need to modify the Findings and 15 Recommendations based on the points raised in the objections. 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. The Findings and Recommendation issued March 27, 2009, is ADOPTED IN FULL; 18 2. Respondent’s Motion to Dismiss is GRANTED; 19 3. All claims concerning the Governor’s 2005 decision are DISMISSED WITH 20 PREJUDICE; 21 4. The First Amended Petition for Writ of Habeas Corpus is STRICKEN; and 22 5. The matter is REFERRED back to the Magistrate Judge for further proceedings. 23 IT IS SO ORDERED. 24 Dated: b9ed48 April 23, 2009 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia cd 2

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