Goursau v. Lizarraga

Filing 5

ORDER signed by Magistrate Judge Craig M. Kellison on 5/19/2017 ORDERING 1 petition for writ of habeas corpus is DISMISSED, without prejudice, as duplicative of petition in 2:16-cv-2363-MCE-CMK. CASE CLOSED. (Henshaw, R)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

LOUIE GOURSAU,

12
13
14
15

Petitioner,
vs.

ORDER

JOE LIZARRAGA,
Respondent.

16
17

No. 2:16-cv-2372-CMK-P

/
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

18

habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is challenging his 2012 conviction out of

19

Solano County. Petitioner has filed a request that this case be consolidated with another case,

20

2:16-cv-2363-MCE-CMK.

21

28 U.S.C. § 2243 provides that the court shall issue an order directing a response

22

to the writ “unless it appears from the application that the applicant . . . is not entitled” relief.

23

Where a petitioner is proceeding pro se and files a new petition before the district court has fully

24

adjudicated the petitioner’s prior petition, the Ninth Circuit has directed that the court should

25

construe the new petition as a motion to amend the petition rather than as a “second or

26

successive” petition. See Woods v. Carey, 525 F.3d 886, 890 (9th Cir. 2008). However, the
1

1

undersigned finds neither consolidation nor construing the petition as a motion to amend would

2

serve a legitimate purpose. The petitions filed in the two separate actions are identical.

3

Accordingly, there is nothing to consolidate nor would there be anything to amend. In his

4

request for this case be consolidated with his other current action, petitioner acknowledges the

5

petition filed in this action is duplicative and was sent out of an abundance of caution. The

6

undersigned interprets his request as a request to voluntarily dismiss this duplicative action.

7

Thus, instead of consolidating or construing the petition as a motion to amend, this action should

8

simply be dismissed as duplicative of case number 2:16-cv-2363-MCE-CMK, which is an active

9

case.

10

Accordingly, IT IS HEREBY ORDERED that the petition for writ of habeas

11

corpus filed in this case is dismissed, without prejudice, as duplicative of the petition filed in

12

case 2:16-cv-2363-MCE-CMK. The Clerk of the Court is directed to close this case.

13
14
15
16

DATED: May 19, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

17
18
19
20
21
22
23
24
25
26
2