Hubbard v. Corcoran State Prison (4B)

Filing 22

ORDER Directing Clerk of Court to File Petition from Case 1:14-cv-509 LJO SAB (HC) in Case 1:13-cv-1758 LJO JLT (HC) as a Motion to Amend signed by Magistrate Judge Stanley A. Boone on 04/23/2014. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ZANE HUBBARD,

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Case No. 1:14-cv-00509-LJO-SAB-HC
Case No. 1:13-cv-01758-LJO-JLT-HC

Petitioner,

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ORDER DIRECTING CLERK OF COURT
TO FILE PETITION [ECF #1] FROM CASE
1:14-cv-00509-LJO-SAB-HC IN CASE 1:13cv-01758-LJO-JLT-HC AS A MOTION TO
AMEND

v.

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GIPSON,

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ORDER ADMINISTRATIVELY CLOSING
CASE 1:14-cv-00509-LJO-SAB-HC

Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

19 pursuant to 28 U.S.C. § 2254.
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On October 23, 2013, Petitioner filed a petition for writ of habeas corpus in this Court.

21 The case was assigned Case No. 1:13-cv-01758-LJO-JLT-HC. He then filed a first amended
22 petition on December 6, 2013. The petition challenges Petitioner’s 2011 conviction in Kern
23 County Superior Court for kidnaping, carjacking, armed robbery, assault with a firearm, terrorist
24 threats, and multiple enhancements. The petition is currently pending review by the Court.
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On April 11, 2014, Petitioner filed a new petition for writ of habeas corpus in this Court.

26 The case was assigned Case No. 1:14-cv-00509-LJO-SAB-HC. The petition also challenges
27 Petitioner’s 2011 conviction out of Kern County Superior Court.
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I.

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DISCUSSION

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“[W]here a new pro se petition is filed before the adjudication of a prior petition is

4 complete, the new petition should be construed as a motion to amend the pending petition rather
5 than as a successive application.” Woods v. Carey, 525 F.3d 886, 888-890 (9th Cir. 2008). But
6 where the claims have already be denied in the previously-filed action, the new petition is
7 construed as a second or successive petition under 28 U.S.C. § 2244(b). Beaty v. Schriro, 554
8 F.3d 780, 782-83 (9th Cir.2009).
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In this case, the petition filed in Case No. 1:13-cv-01758-LJO-JLT-HC had not been

10 adjudicated when Petitioner commenced his second action. Therefore, the Court must consider
11 the petition filed in Case No. 1:14-cv-00509-LJO-SAB-HC as a motion to amend the previously12 filed petition.
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II.

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ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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1) The Clerk of Court is DIRECTED to FILE the Petition (ECF No. 1) from Case No.

17 1:14-cv-00509-LJO-SAB-HC in Case No. 1:13-cv-01758-LJO-JLT-HC as a Motion to Amend;
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2) The Clerk of Court is DIRECTED to ADMINISTRATIVELY CLOSE Case No. 1:14-

19 cv-00509-LJO-SAB-HC; and
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3) Petitioner is INSTRUCTED that all future pleadings should be identified by the case

21 number: 1:13-cv-01758-LJO-JLT-HC.
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IT IS SO ORDERED.
Dated:

April 23, 2014
UNITED STATES MAGISTRATE JUDGE

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