Gibbs v. Shasta County

Filing 7

ORDER signed by Magistrate Judge Kendall J. Newman on 10/13/2016 ORDERING that the 8/8/2016 habeas petition filed in the instant action (ECF No. 1) is construed as a motion to amend petitioner's first-filed habeas petition in Gibbs v. Attorne y General of California, Case No. 2:16-cv-1629 JAM DB (P). The Clerk of the Court is directed to file the habeas petition in this action (ECF No. 1) as a motion to amend in Gibbs v. Attorney General of California, Case No. 2:16-cv-1629 JAM DB (P), and to terminate this action and all outstanding motions. CASE CLOSED. (Jackson, T)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT A. GIBBS,

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No. 2:16-cv-1869 JAM KJN P

Petitioner,
v.

ORDER

SHASTA COUNTY,
Respondent.

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Petitioner, a county inmate proceeding without counsel, has filed a petition for writ of

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habeas corpus pursuant 28 U.S.C. § 2254. Petitioner challenges proceedings in the Shasta County

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Superior Court, Case No. 15F5736, as they relate to charges against him for making criminal

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threats in violation of California Penal Code § 422. (See ECF No. 1 at 2-3.)

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Court records reflect that petitioner is presently challenging the same proceedings in an earlier

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filed action, which remains pending. See Gibbs v. Attorney General of California, Case No. 2:16-cv-

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1629 JAM DB P. It is well established that if a new petition is filed when a previous habeas petition

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is still pending before the district court without a decision having been rendered, then the new petition

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should be construed as a motion to amend the pending petition. Woods v. Carey, 525 F.3d 886, 888

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(9th Cir. 2008). Accordingly, the petition filed in the instant action, ECF No. 1, should be construed

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as a motion to amend the initial petition, and should be filed as such in Gibbs v. Attorney General of

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California, Case No. 2:16-cv-1629 JAM DB P. See Woods, 525 F.3d at 888.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. The August 8, 2016 habeas petition filed in the instant action (ECF No. 1) is construed as a

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motion to amend petitioner’s first-filed habeas petition in Gibbs v. Attorney General of California,

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Case No. 2:16-cv-1629 JAM DB P.

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2. The Clerk of the Court is directed to file the habeas petition in this action (ECF No. 1) as a

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motion to amend in Gibbs v. Attorney General of California, Case No. 2:16-cv-1629 JAM DB P, and

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to terminate this action and all outstanding motions.

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Dated: October 13, 2016

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/gibb1869.woods.mta

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