256 F. Supp. 412 | N.D. Cal. | 1966
MEMORANDUM AND ORDER
Petitioner has filed with this Court a document which he entitles “Petition for Re-hearing.” Heretofore, the Court, on February 23, 1966, dismissed petitioner’s initial petition for a writ of habeas corpus on the ground that said petition wholly failed to allege facts which, if proven true, would raise a justiciable federal question. Petitioner did not seek to appeal from that order, and accordingly it became final upon the expiration of the applicable thirty-day period (See: Poe v. Gladden, 9 Cir., 287 F.2d 249, 250). The document now under consideration was filed on June 8, 1966, some three and one half months following the dismissal of petitioner’s original petition for a writ of habeas corpus.
By his “Petition for Re-hearing,” petitioner seeks to correct the factual deficiencies of his original petition. While the document submitted by petitioner is entitled “Petition for Re-hearing,” it differs so materially from petitioner’s original petition as to cause it to be more properly denominated and treated as a motion seeking permission to amend the original application pursuant to Title 28 U.S.C. § 2242(3). Under either theory, however, the Court is of the view that it would be improper to entertain the proposed petition or motion at this time.
I.
Though a motion for a rehearing following a final determination
II.
Notwithstanding the failure of the instant motion as a “Motion for Rehearing,” it may be argued that the document now before the Court should be filed and treated as an amended petition pursuant to Title 28 U.S.C. § 2242 (3) which provides:
“[An application for a writ of habeas corpus] * * * may be amended or supplemented as provided in the rules of procedure applicable to civil actions.”
In turn, Rule 15, Federal Rules of Civil Procedure, insofar as it may be applied in a habeas corpus proceeding, states that a party may amend his pleading at any time within twenty days following service, and
“[otherwise * * * only by leave of court * * * and leave shall be freely given when justice so requires.”
Under the facts of the case at bar, the issue presented is whether petitioner ought to be allowed, in the interest of justice, to amend his petition by this proceeding.
In Brown v. Heinze, D.C., 248 F. Supp. 293, this Court noted the problems posed by the proliferation of petitions for writs of habeas corpus filed in Federal District Courts. Recent decisions extending the scope of the constitutional right against self-incrimination, when viewed in the light of past experience, portend a continuing increase in the number of petitions filed by state prisoners. It is, therefore, of compelling importance that proper and orderly methods of handling applications for collateral relief be devised and followed.
It is readily apparent that if the procedure which petitioner seeks to utilize here were to be allowed in any but the most exceptional circumstances, those petitions now awaiting consideration would be substantially and intolerably delayed. This Court has never re
The Supreme Court of the United States made reference to the basic problem raised by this case when it said in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148:
“Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, to entertain collateral proceedings whose only purpose is to vex, harass, or delay.” (373 U.S. at 18, 83 S.Ct. at 1078.)
The function of the writ of habeas corpus would be destroyed if a single petition could be forever kept alive through the device of repeated “Motions for Rehearing” in which procedural and substantive defects in the preceding application were sought to be met with new allegations and new arguments. Clearly, in a proper case the rules may be bent to meet the occasions where justice so requires. But rules there are, and rules there must be, lest the Great Writ become engulfed in its own proliferation. Petitioner may be heard, but he must, in fairness, await his turn in time. He can readily secure his rights by filing a new and proper petition.
It is, therefore, ordered that petitioner’s “Petition for Re-Hearing” be, and the same is, hereby denied.
. Petitions for writs of habeas corpus are not subject to the doctrine of res judicata (See: Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068; Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302; Salinger v. Loisel, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989; and Linden v. Dickson, 9 Cir., 287 F.2d 55).