Fullmore v. McDonald

Filing 15

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/28/14. Petition filed in case 2:14-cv-1691 EFB shall be filed in this case as a motion to amend. (Manzer, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID EDWARD FULLMORE,

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No. 2:14-cv-1691-EFB P

Petitioner,
v.

ORDER

KIM HOLLAND, Warden,

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Respondent.

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

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pursuant to 28 U.S.C. § 2254. On March 5, 2014, he filed a petition for writ of habeas corpus in

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this court. See Fullmore v. McDonald, No. 2:14-cv-614-EFB, ECF No. 1. The petition

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challenges petitioner’s 2011 conviction in Sacramento County Superior Court for second degree

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robbery and false imprisonment. On July 2, 2014, respondent filed an answer. The matter now

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stands submitted for decision by the court.

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On July 17, 2014, petitioner commenced this action by filing a new petition for writ of

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habeas corpus. ECF No. 1. The petition also challenges the 2011 conviction out of Sacramento

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County Superior Court. “[W]here a new pro se petition is filed before the adjudication of a prior

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petition is complete, the new petition should be construed as a motion to amend the pending

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petition rather than as a successive application.” Woods v. Carey, 525 F.3d 886, 888-890 (9th

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Cir. 2008).
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In this case, the petition filed in Fullmore v. McDonald, No. 2:14-cv-614-EFB has not

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been adjudicated. Therefore, the court will construe the instant petition as a motion to amend the

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previously-filed petition.

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Accordingly, IT IS HEREBY ORDERED that:
1. The Clerk of the Court shall file the petition (ECF No. 1) in Case No. 2:14-cv-614-EFB as
a motion to amend;
2. The Clerk shall file a copy of this order in Case No. 2:14-cv-614-EFB and close this case;
and
3. Petitioner is instructed that all future pleadings should be identified by the case number:
2:14-cv-614-EFB.
DATED: August 28, 2014.

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