Norton v. Valenzuela et al

Filing 2

ORDER: (1) Directing Clerk of Court to File Copy of Petition as an Original Motion to Amend in Case No. 12cv2634-CAB (RBB); and (2) DISMISSING CASE Without Prejudice. Signed by Judge Gonzalo P. Curiel on 7/1/2013. (All non-registered users served via U.S. Mail Service)(srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOHNNY NORTON,

Civil No.

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Petitioner,
ORDER:

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13cv1485-GPC (BGS)

(1) DIRECTING CLERK OF COURT
TO FILE COPY OF PETITION AS AN
ORIGINAL MOTION TO AMEND IN
Case No. 12cv2634-CAB (RBB); and,

v.
E. VALENZUELA, Warden, et al.,

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Respondents.

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(2) DISMISSING CASE WITHOUT
PREJUDICE

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Petitioner, a state prisoner proceeding pro se, has submitted a Petition for a Writ of

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Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging the sentence imposed as a result of

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his April 24, 2009, conviction in San Diego Superior Court Case No. SCD211717. (See Pet.

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[ECF No. 1] at 1, 6-15.) Petitioner currently has a federal habeas petition pending in this Court

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in Case No. 12cv2634-CAB (RBB), in which he challenges the same state court conviction as

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the Petition filed in this case. (See Pet. filed 10/29/12 in SO.DIST.CA.CIVIL CASE NO. 12cv2436-

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CAB (RBB) [ECF No. 1] at 1.) An Answer and Traverse has been filed in that case, and the

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action is currently awaiting adjudication. (See id. [ECF Nos. 9, 13].)

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The Clerk of Court is DIRECTED to file a copy of the instant Petition as an original

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Motion to Amend the Petition in SO.DIST.CA.CIVIL CASE NO. 12cv2634-CAB (RBB). See

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Woods v. Carey, 525 F.3d 886, 890 (9th Cir. 2008) (holding that a new pro se petition

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challenging the same conviction as a pending petition, which is filed before the first petition is

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adjudicated, should be liberally construed as a motion to amend the pending petition rather than

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summarily dismissed as second or successive). The fact that Petitioner is challenging his

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sentence in this action and his conviction in the prior action does not change the outcome. See

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Hill v. Alaska, 297 F.3d 895, 897-98 (9th Cir. 2002) (recognizing that the “second or

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successive” petition provision of 28 U.S.C. § 2244(b) codified the “abuse of the writ” doctrine

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which “occurs when a petitioner raises a habeas claim that could have been raised in an earlier

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petition were it not for inexcusable neglect.”), citing McCleskey v. Zant, 499 U.S. 467, 493

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(1991).

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This case is DISMISSED without leave to amend but without prejudice to Petitioner to

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seek leave to amend in order to present his claims in SO.DIST.CA.CIVIL CASE NO. 13cv2634-

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CAB (RBB).

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The Clerk shall close the file.

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IT IS SO ORDERED.

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DATED: July 1, 2013

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HON. GONZALO P. CURIEL
United States District Judge

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Copies to:

ALL PARTIES

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