Opinion
No. 2:19-cv-01356 GGH P
08-06-2019
SYDNEY DEEGAN, Petitioner, v. M. SPEARMAN, Respondent.
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
In his current petition, petitioner challenges his 2015 conviction in the Placer County Superior Court. However, a review of the court's records indicates that petitioner has an active habeas petition currently pending in case Deegan v. High Desert State Prison, 2:17-cv-00604-MCE-AC. The Ninth Circuit has directed the district court to construe a "pro se habeas petition as a motion to amend his pending habeas petition" where a new pro se habeas petition has been filed before the complete adjudication of a prior petition rather than as a successive petition. Woods v. Carey, 525 F.3d 886, 890 (9th Cir. 2008). "The district court then has the discretion to decide whether the motion to amend should be granted. Id. (citing Fed. R. Civ. P. 15(a)(2)). Therefore, the undersigned will construe petitioner's pro se petition filed in this case as a motion to amend his pending habeas petition in case 2:17-cv-00604-MCE-AC.
The court may take judicial notice of court records in other cases. United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004) --------
Based on the foregoing, IT IS HEREBY ORDERED that the Clerk of the Court is directed to randomly assign a district judge to this action.
Further, IT IS HEREBY RECOMMENDED that:
1. The Clerk of the Court be directed to refile petitioner's petition for writ of habeas corpus (ECF No. 1) in petitioner's currently pending case, 2:17-cv-00604-MCE-AC; and
2. This action be closed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: August 6, 2019
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE