Opinion
1:16-cv-00614 MJS HC
05-04-2016
RICHARD MIGUEL GARCIA, Petitioner, v. STU SHERMAN, Warden, Respondent.
ODRDER CONSTRUING PETITION AS A MOTION TO AMEND IN A PREVIOUSLY FILED MATTER
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
I. BACKGROUND
On May 2, 2016, Petitioner filed the instant petition challenging his June 9, 2011 conviction from the Tulare County Superior Court of conspiracy to commit murder, second degree murder, and various enhancements. (Pet., ECF No. 1 at 76.) Petitioner was sentenced to an indeterminate life term of forty (40) years to life in state prison. (Id. at 79.) In the present petition, Petitioner presents six separate grounds for relief. (Pet. at 15-18.)
Petitioner titled the petition as an "Amended Petition" and attached a copy of an April 13, 2016 order of this Court dismissing his petition without prejudice, and directing Petitioner to file an amended petition within thirty (30) days. (Pet. at 87-88.) A search of the Court's docket reveals that Petitioner had previously filed a petition challenging the same conviction. See Garcia v. Montgomery, E.D.Cal. Case No. 1:14-cv-00980-DAD-SMS. In that matter, which remains pending, the Court issued an order on April 13, 2016, vacating a stay, dismissing the original petition without prejudice, and directing Petitioner to file an amended petition within thirty (30) days. Construing Petitioner's filing in a light most favorable to Petitioner, the Court will consider the instant petition to be an amended petition filed in the earlier action.
II. ANALYSIS
In Woods v. Carey, 525 F.3d 886 (9th Cir. 2008), the Court held that a petition filed before a prior petition has been adjudicated should be considered a motion to amend the prior petition rather than a second or successive petition.
The instant petition was filed on May 2, 2016. Petitioner filed the earlier petition for writ of habeas corpus in this Court on June 23, 2014. See Garcia v. Montgomery, E.D.Cal. Case No. 1:14-cv-00980-DAD-SMS (ECF No. 1.). The Court granted a stay of the petition on August 28, 2014, and as previously mentioned vacated the stay and ordered an amended petition be filed on April 13, 2016. (Id., ECF Nos. 9, 21.)
Because the petition filed in the instant case (1:16-cv-00614-MJS-HC) appears to be an amended petition relating to the prior case (1:14-cv-00980-DAD-SMS-HC), and the petition was filed while the earlier filed petition is still pending, it is appropriate to construe the document as amended petition in case number 1:14-cv-00980-DAD-SMS-HC.
Therefore, it is ordered that the instant petition initially will be construed as an amended petition in case number 1:14-cv-00980-DAD-SMS-HC, and that the document be re-filed in that action. ///
III. ORDER
Accordingly, it is hereby ORDERED that:
1) The Clerk of Court be DIRECTED to file the petition (ECF No. 1) as an amended petition in case no. 1:14-cv-00980-DAD-SMS-HC; andIT IS SO ORDERED.
2) The Clerk of Court be directed to close the current action.
Dated: May 4, 2016
/s/ Michael J . Seng
UNITED STATES MAGISTRATE JUDGE