Ellison v. NH State Prison, Warden

Filing 7

ORDER page 6 of doument 6 is to be docketed as a motion to amend petition So Ordered by Magistrate Judge Landya B. McCafferty.(mm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Tony L. Ellison
v.

Civil No. 12-cv-36-PB

Richard Gerry, Warden,
New Hampshire State Prison

O R D E R
Tony L. Ellison maintains this action, seeking a writ of
habeas corpus, pursuant to 28 U.S.C. § 2254.

In the petition

originally filed in this matter (doc. nos. 1 and 3), Ellison
asserted four claims for relief, three of which this court
deemed, in an order (doc. no. 4) issued July 2, 2012 (the “July
2 order”), to be “second or successive,” and therefore not
actionable in this court under 28 U.S.C. § 2244(b)(1).
In the July 2 order, the court directed Ellison either to
forego the successive claims or to seek authorization from the
First Circuit to pursue those claims.

In response to the July 2

order, Ellison filed an amended petition (doc. no. 6) including
only the non-successive claim raised in the original petition
(doc. nos. 1 and 3).

The amended petition was accompanied by a

letter (doc. no. 6, p.6) stating that Ellison had chosen to

forego his successive claims and pursue only his non-successive
claim in this action.
The court now construes the letter (doc. no. 6, p. 6) as a
motion to amend Ellison’s petition, filed pursuant to Rule
15(a)(2) of the Federal Rules of Civil Procedure, and to
withdraw the three successive claim.

The Clerk’s office is

therefore directed to redocket the letter as a separate motion
to amend the petition.
SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge
January 16, 2013
cc:

Tony L. Ellison, pro se

LBM:jba

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