Opinion
1:11-cv-01667 MJS HC
10-05-2011
WILLIAM H. HOARD, III, Petitioner, v. FRANK CHAVEZ, Respondent.
ORDER DIRECTING PETITION TO BE
FILED AS AN AMENDED PETITION IN
CASE NO. 1:11-cv-01487-DLB
ORDER DIRECTING CLERK OF COURT TO CLOSE THE CASE
(Doc. 1)
Petitioner is a state prisoner proceeding pro se with a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
On August 23, 2011, Petitioner filed a Petition for Writ of Habeas Corpus with this Court challenging a conviction from the Kern County Superior Court for second degree robbery and resisting arrest, with use of a knife. The case was assigned Case No. 1:11-cv-01487-DLB. On September 9, 2011, the Court issued an order to show cause and granted Petitioner thirty (30) days in which to file an amended petition.
On October 3, 2011, Petitioner filed another Petition for Writ of Habeas Corpus challenging the same conviction. As Petitioner did not specify that it was an amended petition, it was considered a new petition and assigned a new case number.
In general, a petitioner cannot maintain a second or successive petition, and authorization from the appropriate circuit court is required prior to filing. See 28 U.S.C. 2244(a)-(b). However, the federal courts have duty to construe pro se pleadings liberally. Hamilton v. United States, 67 F.3d 761, 764 (9th Cir.1995) (citing Hughes v. Rowe, 449 U.S. 5, 9 (1980) (quotation omitted)). Consistent with such duty, the Court shall consider the present petition as an amended petition and direct the Clerk of Court to file the petition in Case No. 1:11-cv-01487-DLB.
Accordingly, IT IS HEREBY ORDERED:
1) The petition for writ of habeas corpus is DISMISSED without prejudice;IT IS SO ORDERED.
2) The Clerk of Court is DIRECTED to file the present petition as an Amended Petition in Case No. 1:11-cv-01487-DLB; and
3) The Clerk of Court is FURTHER DIRECTED to enter judgment and close this case.
_____________________________
UNITED STATES MAGISTRATE JUDGE