Larkin v. Davey

Filing 6

ORDER signed by Magistrate Judge Edmund F. Brennan on 3/10/2015 DIRECTING the Clerk of Court to file the 1 Petition for Writ of Habeas Corpus as a Motion to Amend in Case No. 2:14-cv-02497 TLN GGH (HC); DIRECTING the Clerk of Court to file a copy of this order on 2:14-cv-02497 TLN GGH (HC) and to close this case; INSTRUCTING the petitioner that all future pleadings be identified by the case number: 2:14-cv-02497 TLN GGH (HC). CASE CLOSED. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHONDEL LARKIN,

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No. 2:14-cv-2508-EFB P

Petitioner,
v.

ORDER

D. DAVEY,
Respondent.

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Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to

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28 U.S.C. § 2254. On October 24, 2014, he filed a petition for writ of habeas corpus in this court.

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See Larkin v. Davey, No. 2:14-cv-2497-TLN-GGH (E.D. Cal.), ECF No. 1. The petition

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challenges a disciplinary conviction arising out of a May 2, 2013 rules violation report. On

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January 20, 2015, respondent filed an answer and on February 20, 2015, petitioner filed a

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traverse. That matter now stands submitted for decision by the court.

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On October 27, 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 disciplinary conviction arising out of

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the May 2, 2013 rules violation report. “[W]here a new pro se petition is filed before the

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adjudication of a prior petition is complete, the new petition should be construed as a motion to

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amend the pending petition rather than as a successive application.” Woods v. Carey, 525 F.3d

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886, 888-890 (9th Cir. 2008).
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In this case, the petition filed in the first action has not been adjudicated. Therefore, the
court will construe the instant petition as a motion to amend the previously-filed petition.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Clerk of the Court shall file the petition (ECF No. 1) in Case No. 2:14-cv-2497-

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TLN-GGH as a motion to amend;
2. The Clerk shall file a copy of this order in Case No. 2:14-cv-2497-TLN-GGH and
close this case; and
3. Petitioner is instructed that all future pleadings should be identified by the case
number: 2:14-cv-2497-TLN-GGH.
DATED: March 10, 2015.

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