Opinion
NO. CV 11-8467 CJC (FMO)
10-19-2011
ALEXANDER ANTONIO FUENTES, Petitioner, v. DEPARTMENT OF HOMELAND SECURITY, Warden, Respondent.
ORDER DISMISSING ACTION WITHOUT PREJUDICE
On October 13, 2011, petitioner, proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in Federal Custody ("Petition") pursuant to 28 U.S.C. § 2241. In his Petition, petitioner challenges the same removal order set forth in his Petition for Writ of Habeas Corpus by a Person in Federal Custody filed on July 13, 2011, in Case No. CV 11-5758 CJC (FMO) ("Prior Petition"), which is still pending before the Court. (Compare Petition at 2 with Prior Petition at 2). Moreover, the instant Petition states the same claims for relief that were raised in the Prior Petition. (Compare Petition at 3-4 with Prior Petition at 3-4). Under the circumstances, the instant Petition must be dismissed without prejudice. See Adams v. State of California Dept. of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007) (Dismissal of a duplicative suit is an appropriate remedy because plaintiffs "generally have no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same [respondent].") (internal quotation marks and citations omitted).
If petitioner wishes to amend his Prior Petition to assert new grounds for relief, petitioner must file a "Motion for Leave to Amend Petition." In the motion, petitioner must show: (a) whether the claims to be added are exhausted; (2) why he did not plead these additional claims when he filed the Prior Petition; and (3) whether the claims relate back to the Prior Petition. See Mayle v. Felix, 545 U.S. 644, 657, 125 S.Ct. 2562, 2571 (2005) (relation back permitted "only when the claims added by amendment arise from the same core facts as the timely filed claims[]"). Petitioner must also lodge his "Proposed First Amended Petition" at the same time that he files his Motion for Leave to Amend Petition.
Based on the foregoing, IT IS ORDERED that this action is dismissed without prejudice.
CORMAC J. CARNEY
UNITED STATES DISTRICT JUDGE