United States District Court, D. Nevada
ORDER (ECF NOS. 37, 43)
P. GORDON, UNITED STATES DISTRICT JUDGE.
action is a pro se petition for writ of habeas
corpus by Richard Denson, a Nevada prisoner convicted of
burglary in Nevada's Eighth Judicial District Court, in
Clark County. Pending are a motion to dismiss filed by the
respondents, and a motion for stay filed by Denson.
Subsequent to the filing of those motions, however, Denson
filed a second amended habeas petition. I will grant Denson
leave to file the second amended petition, and deny the
motion to dismiss and motion for stay as moot.
petition for writ of habeas corpus (ECF No. 4) initiating
this action was received on July 31, 2015. After the matter
of the payment of the filing fee was resolved, the
respondents filed a motion for more definite statement on
October 19, 2016. ECF No. 22. I granted the motion for more
definite statement on January 26, 2017 and stated:
Turning to the substance of respondents' motion,
Denson's petition is nearly 100 pages long, and is a
patchwork of material copied from documents in other cases
and handwritten material; it is unclear how many claims
Denson asserts or what exactly his claims are. Moreover,
respondents point out that Denson's petition discusses,
and appears to challenge, two different state-court
convictions, and does not always make clear which claims
relate to which conviction. “A petitioner who seeks
relief from judgments of more than one state court must file
a separate petition covering the judgment or judgments of
each court.” Rule 2(e), Rules Governing Section 2254
Cases in the United States District Courts. In short,
Denson's petition is too vague and ambiguous to require a
response from respondents.
The court will, therefore, set a schedule for Denson to file
an amended petition (after he confirms his mailing address).
Denson's amended petition must be drafted on the form
provided by the court (he should write “Amended”
above “Petition” on page 1). Denson's amended
petition must challenge only one state- court judgment of
conviction, and must make clear which judgment of conviction
that is. (If Denson wishes to challenge a second state-court
judgment of conviction, he must initiate a second federal
habeas corpus action to do so.) Denson must number,
consecutively, the claims in his amended petition, such that
each numbered claim sets forth one discrete, understandable,
ground for relief, and states the facts supporting that
ground for relief.
If Denson fails to comply with any directive in this order,
this action will be dismissed without prejudice.
ECF No. 24.
filed an amended habeas petition on May 25, 2017. ECF No. 29.
On September 28, 2017, the respondents filed their motion to
dismiss (ECF No. 37), pointing out that Denson's amended
petition, like his original petition, challenged two
different convictions and still did not make clear which
claims relate to which conviction. In addition, the
respondents contended that certain of Denson's claims in
the amended petition are unexhausted in state court. Denson
did not file an opposition to the motion to dismiss.
February 16, 2018, Denson filed a motion to stay proceedings
(ECF No. 43), in which he appeared to request a stay of this
action while he exhausts claims in state court. The
respondents filed an opposition to the motion for stay on
February 28, 2018 (ECF No. 44), and Denson filed a reply on
March 7, 2018 (ECF No. 45). On March 13, 2018, Denson filed a
second amended petition for writ of habeas corpus. ECF No.
construe Denson's filing of the second amended petition
as a motion for leave to amend. A 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). Denson'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).
It appears that Denson has attempted to cure the shortcomings
of his original and first amended petitions (however, I do
not make any finding here with respect to whether he has been
successful in doing so). It does not appear that Denson has
acted in bad faith or with undue delay, and there is no
appearance of prejudice to the respondents. It does not
appear that Denson's further amendment would necessarily
be futile. I therefore will allow the filing of the second
renders moot both the respondents' motion to dismiss and
Denson's motion for stay, and both motions will be denied
on that ground. I will set a schedule for the respondents to
respond to the second amended petition.
THEREFORE ORDERED that, pursuant to Federal Rule of Civil
Procedure 25(d), the Clerk of the Court shall substitute
Jerry Howell for Dwight Neven, on the docket for this case as
the respondent warden, and shall update the caption of the
action to reflect this change.
FURTHER ORDERED that petitioner is granted leave of court for
the filing of his second amended petition for writ of habeas
corpus (ECF No. 46). As the second amended petition has
already been filed, the Clerk of the Court need take no
further action in that regard.
FURTHER ORDERED that respondents' Motion to Dismiss
(ECF No. 37) is DENIED IT IS FURTHER ORDERED
that petitioner's Motion to Stay Proceedings (ECF
No. 43) is DENIED IT IS FURTHER ORDERED that the
respondents shall, within 90 days from the date of this