1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN DUANE HICKMAN, No. 2:18-cv-02967-KJM-CKD P 12 Petitioner, 13 v. ORDER 14 PEOPLE OF THE STATE OF

CALIFORNIA,

15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se and in forma pauperis in this habeas corpus 18 action filed pursuant to 28 U.S.C. § 2254. Currently pending before the court is petitioner’s 19 motion to amend the petition to add a new claim for relief. ECF No. 16. Petitioner also filed a 20 proposed first amended § 2254 petition containing only one claim for relief alleging prosecutorial 21 misconduct for the knowing use of false testimony. ECF No. 17. The amended 2254 petition 22 does not include the two claims for relief presented in the original habeas petition filed on 23 November 4, 2018. See ECF No. 1. Respondent has no opposition to petitioner either 24 proceeding on the amended § 2254 petition containing only one claim for relief or of filing an 25 amended petition “containing all of the claims he wishes to raise in this court.” ECF No. 19 at 1. 26 Amendments of pleadings are governed by Rule 15(a) of the Federal Rules of Civil 27 Procedure. This rule “applies to habeas corpus actions with the same force that it applies to 28 garden-variety civil cases.” James v. Giles, 221 F.3d 1074, 1077 (9th Cir. 2000) (quotation marks 1 and citation omitted). According to Rule 15(a)(2), “[t]he court should freely give leave when 2 justice so requires” even after a responsive pleading has been filed. Denial of a motion for leave 3 to amend a pleading is proper only when “there is strong evidence of undue delay, bad faith or 4 dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments 5 previously allowed, undue prejudice to the opposing party by virtue of allowance of the 6 amendment, or futility of amendment, etc.” Sonoma Cnty. Ass’n of Retired Emps. v. Sonoma 7 Cnty., 708 F.3d 1109, 1117 (9th Cir. 2013) (internal quotation marks and alterations omitted). 8 In this case, there is no evidence of undue delay by petitioner especially in light of the fact 9 that he has already presented the new prosecutorial misconduct claim to the state trial court as 10 well as the California Court of Appeal via state habeas petitions. Nor does respondent identify 11 any undue prejudice resulting from amending petitioner’s habeas application. For all these 12 reasons, the court will grant petitioner’s motion to amend. 13 However, it is not clear that petitioner has included all his claims for relief in the first 14 amended federal habeas petition filed on September 9, 2019. Therefore, the court will order 15 petitioner to file a second amended petition that includes all claims for relief that he wishes to 16 pursue. Plaintiff is informed that the court cannot refer to a prior pleading in order to make 17 plaintiff’s amended complaint complete. Local Rule 220 requires that an amended complaint be 18 complete in itself without reference to any prior pleading. This is because, as a general rule, an 19 amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th 20 Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any 21 function in the case. 22 Accordingly, IT IS HEREBY ORDERED that: 23 1. Petitioner’s motion to amend his federal habeas petition (ECF No. 16) is granted. 24 2. Within 30 days from the date of this order, petitioner shall file a second amended 28 25 U.S.C. § 2254 petition on the court approved form containing all claims for relief 26 which he wishes to pursue. 27 ///// 28 ///// 1 3. The Clerk of Court shall send petitioner the court approved federal habeas corpus 2 petition form used in this district. 3 | Dated: March 11, 2020 Po Pg, fF /- it LE 9 4 CAROLYN K. DELANEY 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12/hick2967.m2amend.docx 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28