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)

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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

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