Diaz v. Biter

Filing 10

FINDINGS And RECOMMENDATION To Grant Motion To Dismiss And Construe Petition As A Motion To Amend (Doc. 8 ), ORDER Directing Clerk Of Court To Assign A District Court Judge To The Instant Matter, signed by Magistrate Judge Michael J. Seng on 9/22/201 5. This case has been assigned to U.S. District Judge Anthony W. Ishii and U.S. Magistrate Judge Michael J. Seng; the new case number is 1:15-cv-00603-AWI-MJS(HC). F&R's referred to Judge Anthony W. Ishii; Objections to F&R due by 10/26/2015. (Fahrney, E)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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1:15-cv-00603 MJS HC
ANGEL A. DIAZ,

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v.

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FINDINGS AND RECOMMENDATION TO
Petitioner, GRANT MOTION TO DISMISS AND
CONSTRUE PETITION AS A MOTION TO
AMEND (Doc. 8)
ORDER DIRECTING CLERK OF COURT TO
ASSIGN A DISTRICT COURT JUDGE TO
THE INSTANT MATTER

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MARTIN BITER,
Respondent.

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

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corpus pursuant to 28 U.S.C. § 2254. Respondent is represented in this action by

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Kathleen McKenna, of the Office of the Attorney General for the State of California.

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I.

BACKGROUND

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On April 17, 2015, Petitioner filed the instant petition challenging his March, 2012

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conviction from the Kings County Superior Court for smuggling a controlled substance

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into a correctional facility, aiding and abetting in criminal gang activity, and various

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enhancements. (Pet., ECF No. 1 at 1.) Petitioner was sentenced to an indeterminate

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term of thirty (30) years to life in state prison. (Id.) In the present petition, Petitioner

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claims: (1) that the trial court failed to strike Petitioner's prior convictions in violation of

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his due process rights, and (2) that appellate counsel was ineffective for failing to provide
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transcript records in support of the appeal. (Pet. at 4.)

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Respondent was directed to file an answer to the petition within sixty days.

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(Order, ECF No. 4.) On June 17, 2015, Respondent filed a response in the form of a

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motion to dismiss the petition. (Mot. to Dismiss, ECF No. 8.) Respondent asserts that

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Petitioner had previously filed a petition challenging the same conviction, that the petition

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should be construed as a motion to amend in the prior petition, and this action be

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dismissed. (Id.)

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II.

ANALYSIS

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In Woods v. Carey, 525 F.3d 886 (9th Cir. 2008), the Court held that a petition

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filed before a prior petition has been adjudicated should be considered a motion to

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amend the prior petition rather than a second or successive petition.

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The instant petition was filed on April 17, 2015. As noted by Respondent,

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Petitioner filed a petition for writ of habeas corpus in this Court on October 27, 2014:

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Diaz v. Biter, Case No. 1:14-cv-01673-JLT-HC. The petition was rather vague, and either

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challenged Petitioner's 2012 conviction or his prior convictions from 2011 that were used

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as strikes in enhancing his sentence for the 2012 conviction. (Case No. 1:14-cv-01673-

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JLT-HC, Pet. at 4.) On December 24, 2014, Respondent moved to dismiss the petition,

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and after briefing by the parties, the Court granted the motion and dismissed the petition

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on May 7, 2015. (Case No. 1:14-cv-01673-JLT-HC, ECF Nos. 14, 23.) The Court held

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that to the extent Petitioner challenged his 2011 conviction, the challenge was barred

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under Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394 (2001). Additionally, to

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the extent that the petition sought to challenge his 2012 conviction, the Court held that

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Petitioner neither stated a cognizable federal claim nor exhausted his state court

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remedies.

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Because the document that was initially filed in the instant case (1:15-cv-00603-

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MJS-HC) relates to the same judgment challenged by Petitioner in the earlier-filed case

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number (1:14-cv-00603-JLT-HC), and this petition was filed while the earlier filed petition

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was still pending, it is appropriate to construe the document as a motion to amend the
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petition in case number 1:14-cv-00603-JLT-HC.

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Therefore, it is recommended that the instant petition initially will be construed as

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a motion to amend the petition in case number 1:14-cv-00603-JLT-HC, and that the

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document be re-filed in that action.

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III.

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Accordingly, it is hereby recommended that:

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RECOMMENDATION

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The motion to dismiss (Doc. 8) be GRANTED and the habeas petition

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initially filed in filed in this action on April 17, 2015, be CONSTRUED as a

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motion to amend the petition in case number 1:14-cv-01673-JLT-HC;

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2)

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The Clerk of Court be DIRECTED to file the petition (ECF No. 1) as a
motion to amend in case no. 1:14-cv-01673-JLT-HC; and

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3)

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Further, the Court ORDERS the Clerk of Court to assign a District Court Judge to

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The Clerk of Court be directed to close the current action.

the instant matter.

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This Findings and Recommendation is submitted to the assigned District Judge,

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pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) days after

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being served with the Findings and Recommendation, any party may file written

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objections with the Court and serve a copy on all parties. Such a document should be

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captioned "Objections to Magistrate Judge's Findings and Recommendation." Any reply

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to the objections shall be served and filed within fourteen (14) days after service of the

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objections. The parties are advised that failure to file objections within the specified time

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may waive the right to appeal the District Court's order. Wilkerson v. Wheeler, 772 F.3d

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834, 839 (9th Cir. 2014).

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IT IS SO ORDERED.
Dated:

September 22, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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