Opinion
3:21-cv-01604-BTM-AHG
09-22-2021
MARLIN LATTEREAL ROYAL, Petitioner, v. RAYMOND MADDEN, Respondent.
ORDER DIRECTING CLERK TO FILE PETITION IN THIS CASE AS A MOTION TO AMEND PETITION IN CASE No. 3:21-cv-00834-WQH-WVG
HONORABLE BARRY TED MOSKOWITZ, UNITED STATES DISTRICT JUDGE
On August 16, 2019, Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of California. The case was transferred to this Court on April 29, 2021, and was given case no. 3:21-cv-00834-WQH-WVG. (See Royal v. Madden, 3:21-cv-00834-WQH-WVG (S.D. Cal. Apr. 26, 2021) [ECF No. 1].) In case no. 3:21-cv-00834-WQH-WVG, Royal challenges his conviction in San Diego Superior Court case no SCE361596. (Id.) The Court informed Royal in an Order dated May 13, 2021, that he had filed a mixed petition and provided Royal with four options to choose from in order to proceed with his case. (See Order dated May 13, 2021 in case no. 3:21-cv-00834-WQH-WVG [ECF No. 6].) On August 25, 2021, Royal filed a response to the Court's May 13, 2021 Order in which he indicated he wished to file an amended petition which contained all his claims, including his newly exhausted ones. (ECF No. 15.)
On September 13, 2021, Royal filed a second habeas corpus petition pursuant to 28 U.S.C. § 2254 in this Court seeking to challenge the same conviction as he does in case no. 3:21-cv-00834-WQH-WVG. That petition was given this case no., 3:21-cv-01604-BTM-AHG. (See Royal v. Madden, 3:21-cv-01604-BTM-AHG (S.D. Cal. Sept. 13, 2021)[ ECF No. 1].)
In Woods v. Carey, 525 F.3d 886 (9th Cir 2008), the Ninth Circuit stated that when a pro se petitioner has a 28 U.S.C. § 2254 petition pending in a district court and files a new 28 U.S.C. § 2254 petition challenging the same conviction, “the district court should . . . construe [a] pro se habeas petition as a motion to amend his pending habeas petition.” Id. at 890. Accordingly, the Clerk of Court is DIRECTED to file the petition in this case (ECF No. 1) as a motion to amend the petition in case no. 3:21-cv-00834-WQH-WVG and close this case, 3:21-cv-01604-BTM-AHG.
IT IS SO ORDERED.