Rivas v. Benov

Filing 17

ORDER Construing Petition As Motion For Leave To Amend In Earlier Case, ORDER Directing Clerk Of The Court To Docket The Petition In This Case As A Motion To Amend In Case No. 1:14-cv-01109-SAB, ORDER Directing The Clerk Of The Court To Close This Case, signed by Magistrate Judge Jennifer L. Thurston on 11/5/2014. CASE CLOSED.(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 12 13 14 15 ) ) ) ) ) ) ) ) ) ) ) ) CESAR ERNESTO RIVAS, Petitioner, v. MICHAEL L. BENOV, Respondent. 16 17 Case No.: 1:14-cv-01118-JLT ORDER CONSTRUING PETITION AS MOTION FOR LEAVE TO AMEND IN EARLIER CASE ORDER DIRECTING CLERK OF THE COURT TO DOCKET THE PETITION IN THIS CASE AS A MOTION TO AMEND IN CASE NO. 1:14-cv01109-SAB ORDER DIRECTING THE CLERK OF THE COURT TO CLOSE THIS CASE 18 19 20 Petitioner is a federal prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. 21 PROCEDURAL HISTORY 22 The instant petition was filed on July 17, 2014, challenging a prison disciplinary hearing 23 conducted at the facility at which Petitioner is presently incarcerated. (Doc. 1). On July 16, 2014, the 24 previous day, Petitioner had filed an almost identical petition in case no. 1:14-cv-01109-SAB (“14- 25 1109”), challenging the same prison disciplinary proceeding, but omitting a signature. 26 27 28 DISCUSSION In Woods v. Carey, 525 F.3d 886 (9th Cir. 2008), the Ninth Circuit held that, under certain circumstances, if a pro se petitioner files a habeas petition during the pendency of a previous petition, 1 1 the district court should construe the later-filed petition as a motion to amend the earlier-filed petition. 2 Woods, 525 F.3d at 889-890. Hence, Woods require a district court to construe a “second or 3 successive” petition filed while an earlier petition is still pending in the district court as a motion to 4 amend the earlier petition. 5 Here, as mentioned, Petitioner first filed a habeas petition in this Court in case no. 14-1109 6 challenging prison discipline. The following day, he filed the instant petition. Both petitions appear 7 virtually identical, except that Petitioner’s prison discipline information is contained in the earlier-filed 8 petition which omits a signature as required by federal law. Applying the Ninth Circuit’s reasoning in 9 Woods, this Court must treat the instant later-filed petition as a motion to amend the earlier-filed 10 petition in case no. 14-1109. Accordingly, the Court will direct the Clerk of the Court to file this 11 petition in case no.14-1109 as a motion to amend the petition in that case and will direct the Clerk of 12 the Court to administratively close this case. ORDER 13 14 For the foregoing reasons, IT IS HEREBY ORDERED as follows: 15 1. to amend the petition in case no. 1:14-cv-01109-SAB to include the claim raised herein; 16 17 2. The Clerk of Court is DIRECTED to docket in case no. 1:14-cv-01109-SAB the instant petition for writ of habeas corpus (Doc. 1) as a motion to amend; 18 19 The Court construes the instant petition for writ of habeas corpus (Doc. 1), as a motion 3. The Clerk of Court is DIRECTED to close this case. 20 21 22 23 IT IS SO ORDERED. Dated: November 5, 2014 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 2

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