Opinion
No. C 12-1881 PJH (PR)
04-09-2013
REGINALD E. MARTIN, Petitioner, v. R. BARNES, Warden, Respondent.
ORDER TO SHOW CAUSE
Petitioner, a California prisoner currently incarcerated at the California Correctional Center in Susanville, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause regarding four claims in the petition. Respondent has filed a response noting that petitioner has another earlier pending case, No. C 11-3075 PJH (PR), challenging the same conviction. That case raises two other claims and respondent has already filed an answer to the petition. Respondent notes that petitioner indicated in the petition in No. C 12-1881 PJH (PR) that he had not previously filed a petition in federal court and there was no petition pending in federal court. No. C 12-1881 PJH (PR), Docket No. 1 at 14.
Where a new pro se habeas petition is filed before the adjudication of a prior petition is complete, the new petition should be construed as a motion to amend the pending petition rather than as a successive application. Woods v. Carey, 525 F.3d 886, 890 (9th Cir. 2008) (holding that petitioner's second pro se habeas petition was not successive under § 2244 and should instead be construed as a motion to amend because it was filed while his previous petition was still pending before the district court). The district court then has the discretion to decide whether the motion to amend should be granted. Woods, 525 F.3d at 890.
Respondent argues that the motion to amend should be denied as petitioner's misrepresentation on the new petition resulted in a new case being opened and petitioner has been dilatory in belatedly changing all of his claims that are not related to the claims in the earlier petition.
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.
Petitioner shall show cause by May 6, 2013, why the habeas action in No. C 12-1881 PJH (PR), should not be construed as a motion to amend and why it should not thereafter be denied leaving only the earlier case, No. C 11-3075 PJH (PR), to proceed.
IT IS SO ORDERED.
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PHYLLIS J. HAMILTON
United States District Judge