Robertson v. Mariposa County Court

Filing 5

ORDER Directing Clerk of Court to File Petition (ECF 1) from Case 1:13-cv-02019-GSA (HC) in Case 1:13-cv-01775-SMS (HC) as a Motion to Amend; ORDER Administratively Closing 1:13-cv-02019-GSA (HC), signed by Magistrate Judge Gary S. Austin on 1/6/14. CASE CLOSED. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ROGER WAYNE ROBERTSON,

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Case No. 1:13-cv-02019-GSA-HC
Case No. 1:13-cv-01775-SMS-HC

Petitioner,
ORDER DIRECTING CLERK OF COURT
TO FILE PETITION [ECF #1] FROM CASE
1:13-cv-02019-GSA-HC IN CASE 1:13-cv01775-SAB-HC AS A MOTION TO AMEND

v.

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MARIPOSA COUNTY COURT,

ORDER ADMINISTRATIVELY CLOSING
CASE 1:13-cv-02019-GSA-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. He has consented to the jurisdiction of the Magistrate Judge
20 pursuant to 28 U.S.C. § 636(c).
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On November 1, 2013, Petitioner filed a petition for writ of habeas corpus in this Court.

22 The case was assigned Case No. 1:13-cv-01775-SMS-HC. The petition challenges Petitioner’s
23 2010 conviction for kidnap and rape sustained in Mariposa County Superior Court.

On

24 November 5, 2013, he filed a First Amended Petition. On December 12, 2013, Magistrate Judge
25 Sandra M. Snyder dismissed the petition and granted Petitioner leave to file an amended petition.
26 On December 26, 2013, Petitioner filed a Second Amended Petition.
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On December 9, 2013, Petitioner filed a second petition for writ of habeas corpus in this

28 Court. The case was assigned Case No. 1:13-cv-02019-GSA-HC. The petition also challenges

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1 Petitioner’s 2010 conviction out of Mariposa County Superior Court.
DISCUSSION

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

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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).
In this case, the petition filed in Case No. 1:13-cv-01775-SMS-HC had not been

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10 adjudicated when Petitioner commenced his second action. Therefore, the Court must consider
11 the petition filed in Case No. 1:13-cv-02019-GSA-HC as a motion to amend the previously-filed
12 petition.
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.

16 1:13-cv-02019-GSA-HC in Case No. 1:13-cv-01775-SMS-HC as a Motion to Amend;
2) The Clerk of Court is DIRECTED to ADMINISTRATIVELY CLOSE Case No. 1:13-

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3) Petitioner is INSTRUCTED that all future pleadings should be identified by the case

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20 number: 1:13-cv-01775-SMS-HC.
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IT IS SO ORDERED.
Dated:

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January 6, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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DEAC_Signature-END:

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