Opinion
1:13-CV-00249 GSA HC 1:11-CV-00192 LJO SKO HC
03-14-2013
TRAVELL DARNELL POGUE, Petitioner, v. P. D. BRAZELTON, Warden, Respondent.
ORDER CONSTRUING PETITION AS A
MOTION TO AMEND
ORDER DIRECTING CLERK OF COURT
TO FILE DOC. #1 INTO CASE NO. 1:11-CV-
00192 LJO SKO HC AS A MOTION TO
AMEND
[Doc. #1]
ORDER TERMINATING CASE
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has consented to the jurisdiction of the magistrate judge pursuant to 28 U.S.C. § 636(c).
On February 19, 2013, Petitioner filed the instant petition in this case. The petition challenges a 2008 conviction sustained in Kern County for attempted murder, first degree burglary, and assault with a deadly weapon. Review of court records reveals Petitioner has a petition pending in the case Pogue v. Hedgpeth, 1:11-cv-00192 LJO SKO HC, in which Petitioner challenges the same conviction and raises the same claims.
This Court "may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue." U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244 (9th Cir.1992); see also MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). Accordingly, the Court takes judicial notice of the docket and pleadings in Pogue v. Hedgpeth, 1:11-cv-00192 LJO SKO HC.
In Woods v. Carey, 525 F.3d 886 (9th Cir.2008), the Ninth Circuit 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. Therefore, the instant petition should and will be construed as a motion to amend the petition in the prior case. The pleading will be ordered re-filed in the prior case, and the instant case will be closed.
ORDER
Accordingly, IT IS HEREBY ORDERED:
1) The petition for writ of habeas corpus in this case is CONSTRUED as a motion to amend the petition in Case No. 1:11-CV-00192 LJO SKO HC;
2) The Clerk of Court is DIRECTED to file the instant petition (Doc. #1) as a motion to amend in Case No. 1:11-CV-00192 LJO SKO HC; and
3) The Clerk of Court is DIRECTED to terminate this case.
IT IS SO ORDERED.
Gary S. Austin
UNITED STATES MAGISTRATE JUDGE