Le v. Almager

Filing 41

ORDER by Judge ARMSTRONG granting 39 Motion to Strike (lrc, COURT STAFF) (Filed on 1/31/2013)

1
2

UNITED STATES DISTRICT COURT

3

FOR THE NORTHERN DISTRICT OF CALIFORNIA

4

OAKLAND DIVISION

5
6 DU LE,

Petitioner,

7
8

Case No: C 08-03293 SBA

vs.

ORDER GRANTING
PETITIONER’S COUNSEL’S
MOTION TO STRIKE PRO SE
SUBMISSIONS

9 V.M. ALMAGER,

Dkt. 39
10

Respondent.

11
12

On July 9, 2008, Petitioner Du Le filed a pro se petition for writ of habeas corpus.

13

On November 8, 2008, the Court granted Petitioner’s request to hold the action in abeyance

14

while he exhausted his unexhausted claims in state court. Dkt. 10.

15

On June 4, 2009, attorney Michael Bigelow substituted in as counsel for record for

16

Petitioner. Dkt. 19. On January 22, 2010, Petitioner, through counsel, filed a first amended

17

petition containing his newly exhausted claims. Dkt. 21. The Court subsequently lifted the

18

stay and issued an order directing the Respondent to show cause why the writ should not

19

issue, and matter has now been fully briefed. Dkt. 25.

20

August 27, 2012, Petitioner, while still represented by counsel, filed a pro se motion

21

to stay the action so that he could return to state court and exhaust an additional claim. Dkt.

22

33. On December 6, 2012, Petitioner filed a pro se second amended petition. Dkt. 35.

23

However, on December 10, 2012, Petitioner filed a pro se motion to withdraw his second

24

amended petition filed on December 6, 2012. Dkt. 36. In his motion, Petitioner indicates

25

that he had been advised by his attorney not to pursue any additional claims, and instead to

26

rely on the claim set forth in his amended petition filed by counsel on January 22, 2010.

27

Separately, Petitioner’s counsel has filed a motion to strike all of Petitioner’s pro se

28

submissions, including his second amended petition. Dkt. 39.

1

A court need not consider pro se motions filed by a party who remains represented

2

by counsel. E.g., United States. v. El-Alamin, 574 F.3d 915, 923 (8th Cir. 2009); United

3

States v. Hildreth, 485 F.3d 1120, 1125 (10th Cir. 2007); United States v. Vampire Nation,

4

451 F.3d 189, 206 n.17 (3rd Cir. 2006); Abdullah v. United States, 240 F.3d 683, 686 (8th

5

Cir. 2001); Ennis v. LeFevre, 560 F.2d 1072 (2d Cir. 1977). In addition, it is apparent from

6

Petitioner’s pro se motion to withdraw that he has decided to follow the advice of his

7

counsel and to forego his efforts to have the second amended petition considered by the

8

Court. Accordingly,

9

IT IS HEREBY ORDERED THAT Petitioner’s counsel’s motion to strike the pro se

10

submissions filed by Petitioner is GRANTED. The Clerk shall strike Docket 33, 34, 35 and

11

36. This Order terminates Docket 40.

12
13

IT IS SO ORDERED.
Dated: January 30, 2013

______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-2-

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

N:\Keith\Prisoner\08-3293 - Le - Order.docx

16
17
18
19
20
21
22
23
24
25
26
27
28
-3-