United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
case is a pro se petition for a writ of habeas
corpus by Nevada prisoner Jeremy Turner. On June 5, 2017, the
respondents filed a motion to dismiss, contending that
several of the claims in Turner’s habeas petition are
unexhausted - completely or partially - in state court (ECF
No. 10). Turner filed an opposition to respondents’
motion to dismiss on September 20, 2017 (ECF No. 20), and
respondents filed a reply on September 27, 2017 (ECF No. 22).
September 20, 2017, further responding to the motion to
dismiss, Turner filed a motion for leave to amend his
petition (ECF No. 21), stating that he wishes to amend to
remove unexhausted claims from his petition. Respondents
filed an opposition to Turner’s motion for leave to
amend on September 27, 2017 (ECF No. 23).
October 4, 2017, Turner filed a motion for extension of time
(ECF No. 24), requesting a 60-day extension of time to file
an amended petition. The Court recognizes that this motion
was probably filed in response to respondents’
argument, in their opposition to the motion for leave to
amend, that Turner’s motion for leave to amend should
be denied because Turner did not file a proposed amended
petition as required by the Court’s local rules.
See LR 15-1. Respondents filed an opposition to the
motion for extension of time on October 9, 2017 (ECF No. 25).
petition for writ of habeas corpus “may be amended or
supplemented as provided in the rules of procedure applicable
to civil actions.” 28 U.S.C. § 2242; see
also Rule 12 of the Rules Governing Section 2254 Cases
in the United States District Courts (recognizing general
applicability of rules of civil procedure in habeas cases).
Turner’s motion for leave to amend is governed by
Federal Rule of Civil Procedure 15(a)(2), which permits an
amended pleading “only with the opposing party’s
written consent or the court’s leave.” The Court
“should freely give leave when justice so
requires.” See, e.g., Outdoor
Systems, Inc. v. City of Mesa, 997 F.2d 604, 614 (9th
Cir.1993) (denial of leave to amend reviewed “for abuse
of discretion and in light of the strong public policy
permitting amendment.”). Factors to be considered
include “bad faith, undue delay, prejudice to the
opposing party, futility of the amendment, and whether the
party has previously amended his pleadings.” Bonin
v. Calderon, 59 F.3d 815, 845 (9th Cir.1995).
case, there is no indication of bad faith or undue delay on
Turner’s part, with respect to his seeking leave to
amend. Further, there is no reason to believe there will be
unfair prejudice to the respondents if Turner is granted
leave to amend, and there is no reason to believe that the
amendment will be futile; Turner states that the purpose for
the amendment would be to remove from his petition claims
that are not exhausted in state court. The Court finds that
granting Turner, who brings this action pro se,
leave to amend at this point in this case is in the interest
correctly point out that Turner has not proffered a proposed
amended petition with his motion for leave to amend.
See LR 15-1. Under the circumstances here, however,
the Court will waive that requirement. There has not yet been
a motion to dismiss adjudicated; the question of the
procedural viability of all of Turner’s claims remains
Turner’s expressed reason for seeking to amend, the
early stage of this action, and the fact that there has not
yet been a motion to dismiss adjudicated, the Court finds
that there is no significant danger of unfair prejudice to
respondents and there will be no undue delay if Turner
amends. The Court will grant Turner’s motion for leave
to amend his petition. The amendment will render moot the
pending motion to dismiss, and that motion will be denied,
without prejudice, on that basis. Turner’s motion for
extension of time is unnecessary, as there is currently no
deadline to be extended. That motion will be denied. However,
the Court takes into consideration that Turner requests sixty
days to file his amended petition.
therefore ordered that petitioner’s Motion to Amend
Petition for Writ of Habeas Corpus (ECF No. 21) is granted.
Petitioner will have sixty (60) days from the date of entry
of this order to file an amended petition for writ of habeas
further ordered that the Clerk of the Court will send to
petitioner, along with a copy of this order, three copies of
the blank form for a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. On that form, when
drafting his amended petition, Turner should write the word
“Amended” above the word “Petition”
in the caption on the first page.
further ordered that respondents’ Motion to Dismiss
(ECF No. 10) is denied as moot. The denial of this motion is
without prejudice to respondents asserting any of the same
arguments in a motion to dismiss the anticipated amended
further ordered that petitioner’s Motion for
Enlargement of Time (ECF No. 24) is ...