(HC) Espindola v. Gamboa

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

ANDRES ESPINDOLA, ) Case No.: 1:21-cv-01255-NONE-JLT (HC)

) Petitioner, ) ORDER GRANTING PETITIONER’S MOTION

) TO AMEND PETITION (Doc. 7)

v. )

) ORDER SUSPENDING BRIEFING SCHEDULE

MARTIN GAMBOA, Warden of Avenal State

) (Doc. 5) Prison,

Respondent. )

) [THIRTY-DAY DEADLINE] )

Petitioner filed a federal petition for writ of habeas corpus on August 18, 2021, raising one claim of instructional error. (Doc. 1.) Following a preliminary review of the petition, on August 20, 2021, the Court issued a briefing schedule and directed Respondent to file a response to the petition. (Doc. 5.) Respondent has not yet filed a response to the petition.

On August 27, 2021, Petitioner filed the instant motion to amend the petition. (Doc. 7.) A petitioner may amend a petition for writ of habeas corpus once “as a matter of course,” and without leave of Court, before a response has been filed under Federal Rule of Civil Procedure 15(a), as applied to habeas corpus actions pursuant to 28 U.S.C. § 2242 and Rule 11 of the Rules Governing Section 2254 Cases. Calderon v. United States District Court (Thomas), 144 F.3d 618, 620 (9th Cir. 1998); Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). A review of the record indicates that no responsive pleading has been filed. Therefore, Petitioner may amend his petition.

ORDER Accordingly, the Court ORDERS that:

1. Petitioner’s motion to amend his petition (Doc. 7) is GRANTED; 2. The briefing schedule set forth in the Court’s order of August 20, 2021 (Doc. 5) is

SUSPENDED; and 3. Within thirty days of the date of service this order, Petitioner shall submit an amended petition. Petitioner is advised that he should caption his pleading, “First Amended Petition,” and he should reference the instant case number. If Petitioner does not submit an amended petition within the allotted time, the Court will proceed with the original petition.

IT IS SO ORDERED.

Dated: August 30, 2021 _ /s/ Jennifer L. Thurston

CHIEF UNITED STATES MAGISTRATE JUDGE