Koon v. Gower

Filing 5

ORDER CONSTRUING PETITION as Motion to Amend in Case No. 1:11-cv-00131-BAM; ORDER DIRECTING Clerk of Court to Docket This Petition as a Motion to Amend in Case No. 1:11-cv-00131-BAM; and ORDER DIRECTING Clerk of COurt to Administratively Close This Case signed by Magistrate Judge Jennifer L. Thurston on 2/27/2014. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Petitioner,

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UTAH CHARLES KOON,

v.
B. GOWER, Warden,

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Respondent.

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Case No.: 1:14-cv-00241-JLT
ORDER CONSTRUING PETITION AS MOTION
TO AMEND IN CASE NO. 1:11-cv-00131-BAM
(Doc. 1)
ORDER DIRECTING CLERK OF COURT TO
DOCKET THIS PETITION AS A MOTION TO
AMEND IN CASE NO. 1:11-cv-131-BAM
ORDER DIRECTING CLERK OF COURT TO
ADMINISTRATIVELY CLOSE THIS CASE

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Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254.
PROCEDURAL HISTORY

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The instant petition was filed on February 24, 2016, challenging Petitioner’s 2008 sentence in

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the Kings County Superior Court for grand theft and receiving stolen property, and his resulting

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sentence of 8 years in prison. (Doc. 1). The petition raises a single claim of ineffective assistance of

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trial counsel. In conducting the preliminary screening of the petition, the Court has become aware that

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Petitioner had filed a previous federal petition in this Court challenging the same 2008 conviction in

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case no. 1:11-cv-00131-BAM, which is still pending.

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DISCUSSION

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In Woods v. Carey, 525 F.3d 886 (9th Cir. 2008), the Ninth Circuit held that if a pro se

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petitioner files a habeas petition during the pendency of a previous petition, the district court should

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construe the second petition as a motion to amend the previous petition rather than as a “second or

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successive” petition that must be dismissed. Woods, 525 F.3d at 889-890.

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As discussed, Petitioner has a pending federal habeas petition in case no. 1:11-cv-00131-BAM,

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challenging the same conviction as is being challenged in the instant case. Under Woods, therefore,

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this Court must construe the instant petition as a motion to amend the petition in case no. 1:11-cv-

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00131-BAM with the claims raised herein. Accordingly, the Court will direct the Clerk of the Court

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to file this petition in case no. 1:11-cv-00131-BAM as a motion to amend the petition in that case and

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will direct the Clerk of the Court to close this case.
ORDER

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For the foregoing reasons, IT IS HEREBY ORDERED as follows:

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1.

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to amend the petition in case no. 1:11-cv-00131-BAM to include the claim raised herein;

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2.

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petition for writ of habeas corpus in this case (Doc. 1) as a motion to amend;

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3.

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The Court construes the instant petition for writ of habeas corpus (Doc. 1), as a motion

The Clerk of Court is DIRECTED to docket in case no. 1:11-cv-00131-BAM the

The Clerk of Court is DIRECTED to close this case.

IT IS SO ORDERED.
Dated:

February 27, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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