Martin v. Barnes

Filing 11

ORDER TO SHOW CAUSE. Habeas Answer due by 6/10/2013. Signed by Judge Phyllis J. Hamilton on 4/9/13. (nah, COURT STAFF) (Filed on 4/9/2013)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 REGINALD E. MARTIN, Petitioner, 8 9 No. C 12-1881 PJH (PR) vs. ORDER TO SHOW CAUSE 11 For the Northern District of California United States District Court 10 R. BARNES, Warden, Respondent. / 12 13 Petitioner, a California prisoner currently incarcerated at the California Correctional 14 Center in Susanville, has filed a pro se petition for a writ of habeas corpus pursuant to 28 15 U.S.C. § 2254. The court ordered respondent to show cause regarding four claims in the 16 petition. Respondent has filed a response noting that petitioner has another earlier pending 17 case, No. C 11-3075 PJH (PR), challenging the same conviction. That case raises two 18 other claims and respondent has already filed an answer to the petition. Respondent notes 19 that petitioner indicated in the petition in No. C 12-1881 PJH (PR) that he had not 20 previously filed a petition in federal court and there was no petition pending in federal court. 21 No. C 12-1881 PJH (PR), Docket No. 1 at 14. 22 Where a new pro se habeas petition is filed before the adjudication of a prior petition 23 is complete, the new petition should be construed as a motion to amend the pending 24 petition rather than as a successive application. Woods v. Carey, 525 F.3d 886, 890 (9th 25 Cir. 2008) (holding that petitioner's second pro se habeas petition was not successive 26 under § 2244 and should instead be construed as a motion to amend because it was filed 27 while his previous petition was still pending before the district court). The district court then 28 has the discretion to decide whether the motion to amend should be granted. Woods, 525 1 2 F.3d at 890. Respondent argues that the motion to amend should be denied as petitioner’s 3 misrepresentation on the new petition resulted in a new case being opened and petitioner 4 has been dilatory in belatedly changing all of his claims that are not related to the claims in 5 the earlier petition.1 6 Petitioner shall show cause by May 6, 2013, why the habeas action in No. C 12- 7 1881 PJH (PR), should not be construed as a motion to amend and why it should not 8 thereafter be denied leaving only the earlier case, No. C 11-3075 PJH (PR), to proceed. 9 Dated: April 9, 2013. PHYLLIS J. HAMILTON United States District Judge 11 For the Northern District of California United States District Court 10 IT IS SO ORDERED. 12 13 G:\PRO-SE\PJH\HC.12\Martin1881.osc-p.wpd 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 The court denied petitioner’s motion for a stay in the earlier case as the motion was simply a few boilerplate sentences and provided no information about what claims were to be exhausted or even if the process had begun. No. C 11-3075 PJH (PR), Docket No. 4. 2

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