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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GEORGE WALLACE, 12 13 14 15 16 No. 2: 17-cv-1270 KJN P Petitioner, v. ORDER PEOPLE OF THE STATE OF CALIFORNIA, Respondent. 17 18 Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas 19 corpus pursuant to 28 U.S.C. § 2254. In the instant action, petitioner challenges his December 20 10, 2010 conviction. 21 Court records reflect that petitioner is presently challenging his December 10, 2010 22 conviction in another pending action, Wallace v. Barnes, 2: 14-cv-0157 MCE EFB P. It is 23 established that if a new petition is filed when a previous habeas petition is still pending before 24 the district court without a decision having been rendered, then the new petition should be 25 construed as a motion to amend the pending petition. Woods v. Carey, 525 F.3d 886, 888 (9th 26 Cir. 2008). However, the Woods holding will not be extended to a situation where the district 27 court has ruled on the initial petition, and proceedings have begun in the Court of Appeals. Beaty 28 v. Schriro, 554 F.3d 780, 782-83 & n.1 (9th Cir. 2009). 1 1 Petitioner’s case, 2: 14-cv-0157 MCE EFB P, is pending and the district court has not yet 2 ruled on the initial petition. Therefore, the petition filed in the instant action should be construed 3 as a motion to amend his initial petition, and filed in 2:14-cv-0157 MCE EFB P. Woods, 525 4 F.3d at 888. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. The June 21, 2017petition (ECF No. 1) should be construed as a motion to amend and 7 8 9 10 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 11 12 13 Wall1270.ord 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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