United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
the Court is Petitioner's petition for habeas corpus and
motion to supplement the petition. ECF Nos. 1-1, 7. For the
following reasons, Petitioner will need to file an amended
filed his application for leave to proceed in forma pauperis
on June 27, 2019. ECF No. 1. The Court ordered Petitioner to
pay the filing fee after he failed to comply with 28 U.S.C.
§ 1951(a)(2) and Local Rule LSR 1-2 for filing of
applications to proceed in forma pauperis. ECF Nos. 3, 6, 9.
Petitioner paid the filing fee on October 22, 2019. ECF No.
10. Petitioner also filed a motion to supplement his petition
on August 14, 2019. ECF No. 7. The Court now reviews his
petition under Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts.
initial petition is missing three grounds. For grounds 1
through 6, it appears that petitioner has copied his brief on
direct appeal. However, the pages containing the allegations
of grounds 4, 5, and 6 are missing. Page 16 of the petition
is the start of ground 4, a claim that the prosecution failed
to prove the charges beyond a reasonable doubt. Page 17 of
the petition is the conclusion of ground 6, a claim that the
prosecution committed misconduct. Ground 5, a claim that the
state district court improperly rejected proposed defense
jury instruction and improperly overruled defense objections
to misleading and prejudicial instructions, is missing
entirely. Petitioner will need to file an amended petition
that includes these grounds for relief.
motion for supplemental addition, Petitioner wishes to
combine grounds 9 and 10, allege additional facts in ground
11, and allege a new ground 29. Because the Court is
directing petitioner to file an amended petition to include
the missing grounds 4, 5, and 6, the Court denies this
motion. Petitioner may modify grounds 9, 10, and 11, and
allege new ground 29 in the amended petition.
amended petition also will need to re-allege all the other
grounds for relief that petitioner does not change from the
initial petition. Otherwise, they will be waived. See
King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). The
Court will not review petitioner's other claims until he
files the amended petition.
IS THEREFORE ORDERED that petitioner's motion
for supplemental addition (ECF No. 7) is
IS FURTHER ORDERED that the Clerk of the Court shall
file the petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254.
IS FURTHER ORDERED that the clerk of the court shall
send petitioner a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 form with instructions.
Petitioner shall have thirty (30) days from the date that
this order is entered in which to file an amended petition.
Neither the foregoing deadline nor any extension thereof
signifies or will signify any implied finding of a basis for
tolling during the time period established. Petitioner at all
times remains responsible for calculating the running of the
federal limitation period under 28 U.S.C. § 2244(d)(1)
and timely asserting claims. If petitioner does not file an
amended petition, then the court will dismiss grounds 4, 5,
and 6 from this action.
IS FURTHER ORDERED that petitioner shall clearly
title the amended petition as such by placing the word
“AMENDED” immediately above “Petition for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. §
2254” on page 1 in the caption, and petitioner shall
place the case number, 2:19-cv-01128-RFB-EJY, above the word
IS FURTHER ORDERED that the Clerk shall add Aaron
Ford, Attorney General for the State of ...