Valdovinos v. Lizzaraga

Filing 9

ORDER signed by Magistrate Judge Kendall J. Newman on 03/01/16 ordering that the clerk of the court is directed to: file the motion to proceed in forma pauperis 8 in petitioner's prior habeas action, Case No. 2:14-cv-2481 MCE CMK. File the instant petition 1 in case no. 2:14-cv-2481 MCE CMK as a second amended petition; and dismiss the instant action. CASE CLOSED. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSE LUIS VALDOVINOS,

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Petitioner,

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v.

No. 2:16-cv-0209 KJN P

ORDER

J. AYARD LIZZARAGA,

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Respondent.

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Petitioner is a state prisoner, proceeding pro se, who filed an application for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. On February 19, 2016, pursuant to court order,

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petitioner filed a request to proceed in forma pauperis.
The court’s own records reveal that on October 8, 2014, petitioner filed a petition for writ

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of habeas corpus, which is presently pending.1 Valdovinos v. Lizarraga, Case No. 2:14-cv-2481

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MCE CMK (E.D. Cal.). Petitioner claims in the instant petition that his prior case was dismissed

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on January 20, 2016. (ECF No. 1 at 4.) However, on January 20, 2016, the assigned magistrate

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judge recommended that the action be dismissed, and the findings and recommendations have not

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yet been adopted by the district court.

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A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d
500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
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Absent permission from the United States Court of Appeals for the Ninth Circuit,

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petitioner must pursue all of his habeas claims in one action. See 28 U.S.C. § 2244(b)(3).

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Therefore, petitioner’s request to proceed in forma pauperis should be filed in his prior habeas

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action, Case No. 2:14-cv-2481 MCE CMK. Moreover, because the instant petition appears to add

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claims that were not included in the original or amended petition filed in Case No. 2:14-cv-2481

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MCE CMK, the instant petition should be filed in petitioner’s prior case as a second amended

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petition. Finally, because the instant petition contains claims raised in Case No. 2:14-cv-2481

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MCE CMK, the instant action is dismissed as duplicative of Case No. 2:14-cv-2481 MCE CMK.

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Good cause appearing, IT IS HEREBY ORDERED that the Clerk of the Court is directed

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to:
1. File the motion to proceed in forma pauperis (ECF No. 8) in petitioner’s prior habeas
action, Case No. 2:14-cv-2481 MCE CMK;
2. File the instant petition (ECF No. 1) in Case No. 2:14-cv-2481 MCE CMK as a second
amended petition; and
3. Dismiss the instant action.
Dated: March 1, 2016

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/vald0209.23

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