Wallace v. Ducart

Filing 8

ORDER signed by Magistrate Judge Kendall J. Newman on 9/8/16 ORDERING that the August 23, 2016 order to show cause is DISCHARGED; The July 5, 2016 petition (ECF No. 1 ) should be construed as a motion to amend and filed in petitioner's initial habeas action, 2:14-cv-0157 MCE EFB; and the Clerk of the Court is directed to file the petition (ECF No. 1 ) in Case No. 2:14-cv-0157 MCE EFB, and to terminate this action. CASE CLOSED. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GEORGE ELLIS WALLACE,

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No. 2:16-cv-1522 KJN P

Petitioner,

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v.

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C.E. DUCART,

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ORDER

Respondent.

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Petitioner is a state prisoner, proceeding without counsel. On August 23, 2016, the

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undersigned ordered petitioner to show cause why this action should not be dismissed based on

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his failure to comply with the July 18, 2016 order. On August 24, 2016, petitioner’s August 19,

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2016 motion to proceed in forma pauperis and certified trust account statement were entered on

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the court’s docket. Therefore, the order to show cause is discharged.

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In the instant petition, petitioner challenges his December 10, 2010 conviction. However,

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court records reflect that petitioner is presently challenging his December 10, 2010 conviction in

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another pending action. Wallace v. Barnes, 2:14-cv-0157 MCE EFB (E.D. Cal.). It is established

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that if a new petition is filed when a previous habeas petition is still pending before the district

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court without a decision having been rendered, then the new petition should be construed as a

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motion to amend the pending petition. Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008).

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However, the Woods holding will not be extended to a situation where the district court has ruled
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on the initial petition, and proceedings have begun in the Court of Appeals. Beaty v. Schriro, 554

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F.3d 780, 782-83 & n.1 (9th Cir. 2009), cert. denied, 558 U.S. 832 (2009).
Petitioner’s case, 2:14-cv-0157 MCE EFB, is pending, and the district court has not yet

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ruled on the initial petition. Therefore, the petition filed in the instant action should be construed

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as a motion to amend his initial petition, and filed in 2:14-cv-0157 MCE EFB. Woods, 525 F.3d

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at 888.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The August 23, 2016 order to show cause is discharged;

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2. The July 5, 2016 petition (ECF No. 1) should be construed as a motion to amend and

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filed in petitioner’s initial habeas action, 2:14-cv-0157 MCE EFB; and
3. The Clerk of the Court is directed to file the petition (ECF No. 1) in Case No. 2:14-cv-

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0157 MCE EFB, and to terminate this action.

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Dated: September 8, 2016

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wall1522.woods

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