Goursau v. Lizarraga
Filing
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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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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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LOUIE GOURSAU,
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Petitioner,
vs.
ORDER
JOE LIZARRAGA,
Respondent.
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No. 2:16-cv-2372-CMK-P
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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is challenging his 2012 conviction out of
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Solano County. Petitioner has filed a request that this case be consolidated with another case,
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2:16-cv-2363-MCE-CMK.
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28 U.S.C. § 2243 provides that the court shall issue an order directing a response
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to the writ “unless it appears from the application that the applicant . . . is not entitled” relief.
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Where a petitioner is proceeding pro se and files a new petition before the district court has fully
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adjudicated the petitioner’s prior petition, the Ninth Circuit has directed that the court should
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construe the new petition as a motion to amend the petition rather than as a “second or
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successive” petition. See Woods v. Carey, 525 F.3d 886, 890 (9th Cir. 2008). However, the
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undersigned finds neither consolidation nor construing the petition as a motion to amend would
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serve a legitimate purpose. The petitions filed in the two separate actions are identical.
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Accordingly, there is nothing to consolidate nor would there be anything to amend. In his
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request for this case be consolidated with his other current action, petitioner acknowledges the
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petition filed in this action is duplicative and was sent out of an abundance of caution. The
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undersigned interprets his request as a request to voluntarily dismiss this duplicative action.
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Thus, instead of consolidating or construing the petition as a motion to amend, this action should
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simply be dismissed as duplicative of case number 2:16-cv-2363-MCE-CMK, which is an active
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case.
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Accordingly, IT IS HEREBY ORDERED that the petition for writ of habeas
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corpus filed in this case is dismissed, without prejudice, as duplicative of the petition filed in
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case 2:16-cv-2363-MCE-CMK. The Clerk of the Court is directed to close this case.
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DATED: May 19, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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