Rivas v. Benov

Filing 17

ORDER Granting Motion To Amend (ECF No. 15 ), signed by Magistrate Judge Stanley A. Boone on 12/30/2014. (Fahrney, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CESAR ERNESTO RIVAS, 12 13 14 15 Case No. 1:14-cv-01109-SAB-HC Petitioner, ORDER GRANTING MOTION TO AMEND v. (ECF No. 15) MICHAEL L. BENOV, Warden, Respondent. 16 17 Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2241. 19 I. 20 DISCUSSION 21 On July 16, 2014, Petitioner filed a petition for writ of habeas corpus in this Court. (ECF 22 No. 1). The petition challenges Petitioner’s disciplinary conviction because an individual not 23 employed by the Federal Bureau of Prisons (BOP) disallowed good conduct time as a result of an 24 incident report. On October 29, 2014, Respondent filed a motion to dismiss the petition as moot. 25 (ECF No. 14). On December 3, 2014, Petitioner filed his opposition to Respondent’s motion to 26 dismiss. (ECF No. 16). 27 On October 28, 2014, Respondent alerted the Court to the fact that the two petitions 28 challenge the same disciplinary hearing. (ECF No. 13). Respondent moved to consolidate the 1 1 two cases. In Case No. 1:14-cv-01118-JLT-HC, on November 5, 2014, Magistrate Judge 2 Jennifer L. Thurston ordered that the Court construe the petition in Case No. 1:14-cv-011183 JLT-HC as a motion to amend the petition in Case No. 1:14-cv-01109-SAB. Magistrate Judge 4 Thurston noted that in Woods v. Carey, 525 F.3d 886, 888-890 (9th Cir. 2008), the Ninth Circuit 5 held that a district court should construe a second or successive petition filed while an earlier 6 petition is still pending in the district court as a motion to amend the earlier petition. 7 Accordingly, Magistrate Judge Thurston ordered that the petition in Case No. 1:14-cv-011188 JLT-HC be filed in this case as a motion to amend the petition. The Court will not issue a new briefing schedule for the amended petition, because both 9 10 parties have submitted briefs on the original petition. The amended petition is nearly identical to 11 the original petition in this case, and does not raise any new claims. Therefore, there is no need 12 for the parties to submit new or additional briefing on the amended petition. 13 II. 14 ORDER 15 Accordingly, IT IS HEREBY ORDERED that the motion to amend the petition, filed in 16 17 this case on July 17, 2014, is GRANTED. 18 19 IT IS SO ORDERED. 20 Dated: December 30, 2014 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 2

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