Rios v. Uttecht

4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA LUCIANO MOLINA RIOS, Case No. 3:22-cv-5245-JHC-TLF 7 Petitioner, v. ORDER PERMITTING 8 PETITIONER TO SEEK LEAVE TO STATE OF WASHINGTON, AMEND PETITION AND 9 RENOTING PETITION Respondent.

11 This matter is before the Court on petitioner’s filing of a second petition for habeas corpus that also challenges the conviction at issue in this matter. Rios v. State of Washington, No. 3:22-cv-05931 JLR-TLF (“Rios II”), Dkt. 4 at 1. The Ninth Circuit has held that a later-filed habeas petition should generally be considered a motion to amend an earlier-filed pending habeas petition. See Woods v. Carey, 525 F.3d 886, 890 (9th Cir. 2008).

17 Petitioner seeks to bring an additional claim challenging the same conviction at issue in this matter, on the ground that the trial judge was biased due to his previous determination of probable cause. Rios II, Dkt. 4 at 1, 16. Here, the additional claim petitioner seeks to assert may lack merit. See Liteky v. United States, 510 U.S. 540, 551 (1994) (judges cannot be deemed biased or prejudiced as a result of information they learned in earlier proceedings); Golden v. Kirkegard, No. CV 15-07-M-DLC, 2015 23 WL 417900, at *1 (D. Mont. Jan. 30, 2015) (claim that trial judge was biased because he previously ruled on probable cause was “frivolous” and “conclusively lacking in merit”) (citing Liteky).

3 Therefore, the Court will not grant petitioner leave to amend at this time. Instead, petitioner may file a motion seeking leave to amend, together with a proposed amended petition. If plaintiff files a request for leave to amend, the Court will consider the motion together with the merits of the existing petition.

7 Accordingly, the Court ORDERS as follows: 8 1. Petitioner is granted leave to file a motion to amend his petition to include 9 additional claims; plaintiff shall file any such motion, together with a proposed 10 amended petition, on or before March 31, 2023; 11 2. If petitioner files a motion to amend, respondent shall file a response on or 12 before April 17, 2023; petitioner may file a reply on or before April 21, 2023 13 and the motion shall be noted for that date; 14 3. The Clerk is directed to renote the decision on the merits of the petition in this 15 matter for April 21, 2023.

16 Dated this 21st day of February, 2023.

A Theresa L. Fricke 20 United States Magistrate Judge