(HC) Leney v. Butte County Jail

Filing 11

ORDER signed by Magistrate Judge Chi Soo Kim on 11/25/2024 GRANTING Petitioner's #2 Motion to Proceed IFP and DIRECTING the Clerk to file the #1 Petition as an Amended Petition in Petitioner's earlier habeas action, Case No. 2:24-cv-2509 CSK P. The Clerk is DIRECTED to file Petitioner's subsequent #5 , #6 , #7 , #8 , #9 & #10 Filings in his earlier habeas action, Case No. 2:24-cv-2509 CSK P. All future filings shall bear Case No. 2:24-cv-2509 CSK P. CASE CLOSED. (Spichka, K.)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

JASON RODNEY LENEY,

12

Petitioner,

13

v.

14

No. 2:24-cv-2650 CSK P

ORDER

BUTTE COUNTY JAIL,

15

Respondent.

16
Petitioner, a state prisoner proceeding pro se, filed an application for a writ of habeas

17
18

corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis.

19

Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford

20

the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See

21

28 U.S.C. § 1915(a).

22

Petitioner’s 27 page petition was filed with the Court on September 30, 2024, and

23

challenges his December 23, 2023 conviction. (ECF No. 1.) The Court’s own records reveal that

24

on September 16, 2024, petitioner filed a six page petition challenging the same December 23,

25

2023 conviction. (Case No. 2:24-cv-2509 CSK P.). 1 Petitioner appears to raise the same four

26

grounds against the same respondents in both petitions but adds facts and exhibits to the later-

27
28

1

A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d
500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
1

1

filed petition. In addition, petitioner has been filing documents in the later action, including a

2

notice of change of address. On the other hand, in his earlier action, Case No. 2:24-cv-2509 CSK

3

P, petitioner’s mail was returned on September 30, 2024, and petitioner has filed nothing in his

4

first case since he filed the original petition and request to proceed in forma pauperis.

5

Comparison of the two petitions demonstrates that the subsequently filed petition should

6

be construed as an amended petition and filed in the earlier action. Because of such construction,

7

the Clerk of the Court is directed to file the petition in his earlier action, Case No. 2:24-cv-2509

8

CSK P, as an amended petition, along with petitioner’s subsequent filings in this action, Case No.

9

2:24-cv-2650 CSK P: ECF Nos. 5, 6, 7, 8, 9, and 10. Petitioner is informed that his case will

10

proceed in Case No. 2:24-cv-2509 CSK P, and all future filings should bear Case No. 2:24-cv-

11

2509 CSK P. Because the instant action was improvidently opened as a new action, rather than as

12

petitioner’s amendment in his earlier habeas action, the Clerk of the Court is directed to terminate

13

this action.

14

Accordingly, IT IS HEREBY ORDERED that:

15

1.

16

2. The Clerk of the Court is directed to file the September 30, 2024 petition as an

17
18

Petitioner’s request to proceed in forma pauperis (ECF No. 2) is granted.

amended petition in petitioner’s earlier habeas action, Case No. 2:24-cv-2509 CSK P.
3. The Clerk of the Court is directed to file petitioner’s subsequent filings in Case No.

19

2:24-cv-2650 CSK P (ECF Nos. 5, 6, 7, 8, 9, and 10) in his earlier habeas action, Case

20

No. 2:24-cv-2509 CSK P.

21

4. All future filings shall bear Case No. 2:24-cv-2509 CSK P.

22

5. The Clerk of the Court is directed to terminate this action.

23
24

Dated: November 25, 2024

25
26
27

/1/lene2650.123

28
2