Amparo v. Neoti

Filing 6

ORDER OF DISMISSAL (Illston, Susan) (Filed on 12/12/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARCOS AMPARO,

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United States District Court
For the Northern District of California

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No. C 11-4436 SI (pr)

Petitioner,

ORDER OF DISMISSAL

v.
G. NEOTI, warden,
Respondent.
/

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This action was opened when the court received from Marcos Amparo a form petition for

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writ of habeas corpus pursuant to 28 U.S.C. § 2254 that challenges his 2005 conviction from

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Monterey County Superior Court. Amparo has another habeas petition pending in this

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courthouse that challenges the same conviction: Amparo v. Adams, No. C 09-801 MMC.

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Amparo cannot have two different petitions challenging the same judgment. A petitioner

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generally may only file one habeas petition per state court judgment. He must include in a single

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petition all of his claims pertaining to the conviction and sentence covered by that judgment.

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See Burton v. Stewart, 549 U.S. 147 (2007) (action had to be dismissed because Apprendi

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challenge to sentence was a second or successive petition to earlier petition challenging

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conviction); see also Hill v. State of Alaska, 297 F.3d 895, 898 (9th Cir. 2002) (although the term

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"second or successive" in § 2244(b) is not defined in the statute, the Supreme Court and various

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circuit courts "have interpreted the concept incorporated in this term of art as derivative of the

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'abuse-of-the-writ' doctrine developed in pre-AEDPA cases. . . . An 'abuse-of-the-writ' occurs

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when a petitioner raises a habeas claim that could have been raised in an earlier petition were

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it not for inexcusable neglect.")

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Generally, a second or successive petition challenging the same judgment may not be

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filed in this court unless the petitioner first obtains from the United States Court of Appeals for

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the Ninth Circuit an order authorizing this court to consider the petition. See 28 U.S.C. §

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2244(b)(3)(A). However, when a new pro se habeas petition is filed before the adjudication of

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the first petition is complete, the new petition should be construed as a motion to amend the

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pending first petition rather than as a § 2244(b) successive petition. Woods v. Carey, 525 F.3d

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886, 890 (9th Cir. 2008) (petitioner's second pro se habeas petition was not successive under §

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2244 and should instead be construed as a motion to amend because it was filed while his

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previous petition was still pending before the district court). The district court then has the

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discretion to decide whether the motion to amend should be granted. Woods, 525 F.3d at 890.

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Woods applies here because the first petition (Case No. C 09-801 MMC) is still pending

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and has not yet been adjudicated. Any challenge to the 2005 Monterey County Superior Court

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conviction would have to be asserted, if at all, in Case No. C 09-801 MMC, as that is the first

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petition that challenges the judgment. The clerk shall file a copy of the petition from this action

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in Case No. C 09-801 MMC, for consideration therein. Although Woods contemplates that the

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new petition should be construed to be a motion to amend the pending first petition, it is not

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clear whether that is Amparo's intent – he may have been trying to file a traverse in that action.1

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This action is DISMISSED because petitioner has a habeas petition pending that

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challenges the same conviction he seeks to challenge in this action.

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The deadline for Amparo to file a traverse in Case No. C 09-801 MMC was August 31, 2011.
The habeas petition in the present action was mailed by Amparo on August 28, 2011 and has a proof
of service with the handwritten notation, "compleating (sic) the deadlines 8/31/11 traverse documents."
(Docket # 1, last page.)
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Petitioner's in forma pauperis application is GRANTED. (Docket # 2, # 5.) His

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application for extension of time to file his in forma pauperis also is GRANTED; the application

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is deemed to be timely filed. (Docket # 4.)

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After placing a copy of the copy of docket # 1 from this action into the case file for Case

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No. C 09-801 MMC for consideration therein, the clerk shall close the file for this action (i.e.,

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close Case No. C 11-4436 SI).

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IT IS SO ORDERED.

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DATED: December 12, 2011
SUSAN ILLSTON
United States District Judge

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