Free Memorandum in Support of Motion - District Court of Connecticut - Connecticut

Case 3:03-cv-006§5—PCD Document 19 Filed 10/20/2003 Page 1 of 4,2 2 1
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UNITED STATES DISTRICT COURT§E; {~N 1
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DAVID L. JOYCE, : CASE NO? :O§—CW1g5EJPCD) 1
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Petitioner, ; *1 1i»% 1g‘1 1
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THERESA C. LANTZ, COMMISSIONER:
OF CONNECTICUT DEPARTMENT OF
CORRECTIONS, AND HECTOR :
RODRIGUEZ, WARDEN CHESHIRE 1
CORRECTIONAL INSTITUTION, :
Respondents. ; ocToBER mm 2003 Z
MEMORANDUM OF LAN IN SUPPORT OF MOTION FOR LEAVE TO FILE 1
SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS 1
Pursuant to Local Rule 9(a), Petitioner hereby submits 1
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the following memorandum in support of the foregoing.
I. RELEVANT PROCEDURAL HISTORY
On or about October 1, 2003, the Respondents filed a 1
Motion to Dismiss the Petitioner’s First Amended Petition
for Writ of Habeas Corpus on the ground that Count Three of 1
said petition contained an unexhausted claim. The
Respondents’ motion makes no claim that Counts One and Two l
were not properly preserved or exhausted. 2
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p Case 3:03-cv-OOE§5§—PCD Document 19 Filed 10/EOSZOOS Page 2 of 4
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II . ARGUMENT .
The motion for leave to amend should be granted where
the Respondents do not object to the filing of the
proposed Second Amended Petition.
Petitioner now moves for leave to file a second ;
amended petition deleting Count Three, and leaving Counts
One and Two intact.
28 U.S.C. § 2242 expressly provides that pleadings in
habeas corpus matters “may be amended or supplemented as
provided in the rules of procedure applicable to civil
actions.” Rule 15(a) of the Federal Rules of Civil
Procedure provides that a party may amend its pleading by 2
leave of the Court after twenty days have expired from the é
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service of the original pleading, and that such “leave
shall be freely given when justice so requires.”
In the present case, justice favors allowing the x
proposed amendment where the Respondents have stated that E
they have no objection to its filing, and where dismissal i
of the entire three—count petition based on the presence of i
a single allegedly unexhausted count would unfairly deprive W
the Petitioner of his right to have his other preserved and \
exhausted claims heard. \
Aside from the deletion of the Third Count, the i
proposed Second Amended Petition is identical in all other i
respects to the First Amended Petition. As previously R
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_ Case 3:03-cv-OO?£'§—PCD Document 19 Filed 10/5-052003 Page 3 of 4
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noted, Counsel for the Respondents has indicated that there I
is no objection to the filing of the proposed Second
Amended Petition, but has also indicated that Respondents i
reserve all other rights with regard to the Second Amended X
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Petition.
Accordingly, the motion for leave to amend should be l
granted.
Respectfully submitted,
THE PETITIONER, E
DAVID L. JOYCE
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Richard L. Grant, Esq.
LIPPMAN & OUELLETTE, L.L.C.
142 Temple Street l
New Haven, CT 06510
Tel. (203)776—4546
Fax (203)776—4435
Federal Court #CT20708
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. Case 3:03-cv-O0?$—PCD Document 19 Filed 10é2-052003 Page 4 of 4 `
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CERTIFICATE OF SERVICE
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This is to certify that a copy of the foregoing was 2
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served by regular first class mail on October 20, 2003 upon \
all counsel and pro se parties of record, as follows: {
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Jo Anne Sulik
Appellate Bureau
Office of the Chief State’s Attorney
300 Corporate Place
Rocky Hill, ctr? 06067 ,
Tel. (860)258—58OO g
David L. Joyce, #92272
Cheshire C.I.
900 Highland Ave. !
Cheshire, CT 06410
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Richard L. Grant
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