(HC) Wallace v. Barnes, No. 2:2014cv00157 - Document 66 (E.D. Cal. 2015)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/19/2015 ORDERING the Clerk of Court to docket 60 Amended Petition along with pages 14-23 of the 1 Petition and the 63 Motion to Expand Record as the Seco nd Amended Complaint. It is further ORDERED that the Clerk shall terminate 63 Motion. It is HEREBY RECOMMENDED that the 64 Motion to Dismiss be denied as moot and that the respondent be directed to file a response to the Second Amended Complaint within 60 days of any order adopting this recommendation. Objections due within 14 days after being served with this order. Referred to Judge Morrison C. England Jr. (Donati, J)

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(HC) Wallace v. Barnes Doc. 66 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GEORGE WALLACE, 12 13 14 15 No. 2:14-cv-0157-MCE-EFB P Petitioner, v. ORDER AND FINDINGS AND RECOMMENDATIONS RON E. BARNES, Respondent. 16 17 Petitioner is a state prisoner proceeding without counsel seeking a writ of habeas corpus. 18 See 28 U.S.C. § 2254. On February 13, 2015, the court granted petitioner leave to amend his 19 petition. ECF No. 50. After a seven month delay, petitioner finally filed an amended petition. 20 ECF No. 60. The court directed respondent to file either an answer or motion in response to the 21 amended petition. ECF No. 61. Respondent now moves to dismiss the amended petition solely 22 on the ground that it includes references to the original petition, in violation of Local Rule 220. 23 See E.D. Cal. Local Rule 220 (requiring that pleadings be complete in themselves, without 24 reference to prior pleadings). 25 For the sake of efficiency, the Clerk of the Court is directed to docket the amended 26 petition, along with the referenced pages in the original petition, as a “Second Amended Petition.” 27 Respondent’s motion to dismiss should therefore be denied as moot and respondent should be 28 directed to file a response to the Second Amended Petition. 1 Dockets.Justia.com 1 The court notes that after filing the amended petition, petitioner moved “to expand the 2 record” with exhibits in support of his actual innocence claim. That filing shall also be included 3 with the “Second Amended Petition.” A fair reading of these documents, as so organized, places 4 respondent reasonably on notice as to what claims the petitioner is attempting to present and 5 enables respondent to fashion a meaningful response. 6 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall docket the 7 amended petition (ECF No. 60), along with pages 14-23 of the original petition (ECF No. 1), and 8 the motion to expand the record (ECF No. 63), together as a “Second Amended Petition.” The 9 Clerk shall also terminate docket number 63. 10 Further, IT IS HEREBY RECOMMENDED that respondent’s motion to dismiss (ECF 11 No. 64) be denied as moot and that respondent be directed to file a response to the Second 12 Amended Petition within 60 days of any order adopting this recommendation. 13 These findings and recommendations are submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 15 after being served with these findings and recommendations, any party may file written 16 objections with the court and serve a copy on all parties. Such a document should be captioned 17 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 18 within the specified time may waive the right to appeal the District Court’s order. Turner v. 19 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 DATED: October 19, 2015. 21 22 23 24 25 26 27 28 2

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