Diaz v. Biter

Filing 11

ORDER ADOPTING 10 Findings and Recommendation to Grant 8 Motion to Dismiss and Construe Petition as Motion to Amend, signed by District Judge Anthony W. Ishii on 2/2/16. CASE CLOSED.(Marrujo, C)

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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 AWI MJS HC
ANGEL A. DIAZ,

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v.

ORDER ADOPTING FINDINGS AND
Petitioner, RECOMMENDATION TO GRANT MOTION
TO DISMISS AND CONSTRUE PETITION
AS A MOTION TO AMEND
(Docs. 8, 10)

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MARTIN BITER, Warden,
Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.

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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. On June 17, 2015, Respondent filed a

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response in the form of a motion to dismiss the petition. (Mot. to Dismiss, ECF No. 8.)

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Respondent asserts that Petitioner had previously filed a petition challenging the same

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conviction, that the petition should be construed as a motion to amend in the prior

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petition, and this action be dismissed. (Id.)

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On September 23, 2015, the Magistrate Judge recommended that the instant

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petition to be construed as a motion to amend the petition in case number 1:14-cv-

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00603-JLT-HC, and that the document be re-filed in that action.
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As of the date of this order, Petitioner has filed no objections or response of any
kind to the Findings and Recommendation.
In accordance with the provisions of 28 U.S.C. § 636 (b), this Court has reviewed

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the case.

Having carefully reviewed the entire file, the Court concludes that the

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Magistrate Judge's Findings and Recommendation is supported by the record and

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proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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

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

motion to amend the petition in case number 1:14-cv-01673-JLT-HC;
2.

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

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3.

The Clerk of Court is directed to close the current action; and

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4.

The Court DENIES the issuance of a Certificate of Appealability. 28 U.S.C.

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§ 2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000) In order to obtain a

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COA, petitioner must show: (1) that jurists of reason would find it debatable

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whether the petition stated a valid claim of a denial of a constitutional right;

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and (2) that jurists of reason would find it debatable whether the district

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court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. at

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484.

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whether the petition was properly dismissed.

In the present case, jurists of reason would not find debatable

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IT IS SO ORDERED.
Dated: February 1, 2016
SENIOR DISTRICT JUDGE

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