Wallace v. The People of the State of California

Filing 6

ORDER signed by Magistrate Judge Kendall J. Newman on 7/26/2017 ORDERING 1 Petition should be construed as a motion to amend and filed in petitioner's initial habeas action, 2:14-cv-0157 MCE EFB P and DIRECTING Clerk to file 1 Petition in 2:14-cv-0157 MCE EFB P, and terminate this action. CASE CLOSED. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GEORGE WALLACE,

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No. 2: 17-cv-1270 KJN P

Petitioner,
v.

ORDER

PEOPLE OF THE STATE OF
CALIFORNIA,
Respondent.

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Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. In the instant action, petitioner challenges his December

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10, 2010 conviction.

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Court records reflect that petitioner is presently challenging his December 10, 2010

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conviction in another pending action, Wallace v. Barnes, 2: 14-cv-0157 MCE EFB P. It is

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

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

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construed as a motion to amend the pending petition. Woods v. Carey, 525 F.3d 886, 888 (9th

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Cir. 2008). However, the Woods holding will not be extended to a situation where the district

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court has ruled on the initial petition, and proceedings have begun in the Court of Appeals. Beaty

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v. Schriro, 554 F.3d 780, 782-83 & n.1 (9th Cir. 2009).
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Petitioner’s case, 2: 14-cv-0157 MCE EFB P, 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 P. Woods, 525

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F.3d at 888.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The June 21, 2017petition (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 P; and
2. The Clerk of the Court is directed to file the petition (ECF No. 1) in Case No. 2: 14-cv0157 MCE EFB P, and to terminate this action.
Dated: July 26, 2017

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