Wright v. Muniz

Filing 5

ORDER DENYING MOTION TO VACATE JUDGMENT RE case no. 15-cv-1600-HSG. Signed by Judge Haywood S. Gilliam, Jr. on 12/16/2015. (Attachments: # 1 Certificate/Proof of Service)(ndrS, COURT STAFF) (Filed on 12/16/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RAYMOND WRIGHT,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 15-cv-01600-HSG (PR)
ORDER DENYING MOTION TO
VACATE JUDGMENT

v.

Re: Dkt. No. 19

W.L. MUNIZ,
Defendant.

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On March 26, 2015, petitioner, a former state prisoner, filed a pro se habeas petition

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challenging the California Department of Corrections and Rehabilitation’s calculation of his

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release date. The petition was originally filed in the United States District Court for the Eastern

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District of California, using that court’s form for habeas petitions brought pursuant to 28 U.S.C.

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§ 2254. The Eastern District thereafter transferred the petition to this District on the ground that,

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because petitioner was challenging the execution of his sentence and was incarcerated in this

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District, venue over the petition lies in this District.

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On August 10, 2015, the case was dismissed for failure to exhaust state court remedies.

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Petitioner was advised that if chose to re-file after exhausting state court remedies, he could not re-

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file his petition as an amended petition in this action but must instead file a new petition and a new

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case number would be assigned it.

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On December 1, 2015, petitioner re-filed the same petition in this Court, using the same

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Eastern District form and with the case number crossed out. With the petition, he filed a letter

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reporting that state court remedies had been exhausted on November 10, 2015 when the California

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Supreme Court denied his state habeas petition. The re-filed federal petition and letter were

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opened as a new action and given a new case number, C 15-5506 HSG (PR). The Clerk notified

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petitioner that he had not filed a petition using this Court’s form for Section 2254 petitions.

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Petitioner was also advised that he needed to pay the $5.00 filing fee or file an application to

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proceed in forma pauperis (“IFP”). The Clerk also mailed to petitioner the Court’s petition and

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IFP forms and instructions for completing the forms.

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Petitioner then filed a motion to vacate judgment in this action. It appears that he is under

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the impression that his re-filed petition was rejected. This is incorrect. Accordingly, the instant

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motion is DENIED. There is no need to vacate judgment in this action. Petitioner may proceed

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with his petition in C 15-5506 HSG (PR) after re-submitting the petition on the form he was

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provided. The petition should include civil case number C 15-5506 HSG (PR).

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Finally, the Court notes that although petitioner is no longer in custody, the Clerk sent him

United States District Court
Northern District of California

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a prisoner IFP application. Should petitioner be granted leave to proceed IFP based on the

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information provided in the prisoner IFP application, the Court will be unable to collect the funds

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from petitioner’s prisoner trust account as required under 28 U.S.C. § 1915(b). Therefore, the

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Clerk is directed to provide petitioner with a non-prisoner IFP application.

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The Court notes that petitioner’s form petition and IFP application in C 15-5506 HSG (PR)

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are currently due on or before January 8, 2016. In the interests of justice, the Court sua sponte

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extends petitioner’s deadline to January 22, 2016.

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The Clerk shall file a copy of this order in C 15-5506 HSG (PR).

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This order terminates Docket No. 19.

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IT IS SO ORDERED.

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Dated: 12/16/2015

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________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

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