Thomas v. Tapia

Full title: JOHN PAUL THOMAS, Petitioner, v. GEORGE TAPIA, Respondent

Court: United States District Court, D. New Mexico

Date published: Feb 26, 2010

No. CV 09-1009 WJ/LAM (D.N.M. Feb. 26, 2010)

Opinion

No. CV 09-1009 WJ/LAM.

February 26, 2010

ORDER

LOURDES MARTINEZ, Magistrate Judge

THIS MATTER is before the Court on Petitioner's Motion to Consolidate and for Leave to Amend (Doc. 2), Motion for Summary Judgment in Favor of Double Jeopardy Claim and Memorandum of Law in Support of Motion (Doc. 7), and Motion for Order to Disclose (Doc. 9). In his motion to consolidate and to amend, Petitioner asks the Court to consolidate his earlier petition in Cause No. CV 08-1016 JH/WPL with the instant petition. The previous petition, however, has been dismissed without prejudice, thereby precluding consolidation. Alternatively, Petitioner will be allowed to submit an amended petition asserting all of his claims. The Court may not properly enter summary judgment at this stage of the case. See Rule 4 of the Rules Governing Section 2254 Cases (explaining that a Section 2254 petition must undergo a preliminary review by the Court and, if the Court determines that the petition should not be summarily dismissed, the Court may then order service on the respondent and order respondent to file an answer, motion, or other response to the petition). The motion for summary judgment will, therefore, be denied without prejudice. The Court will also deny Petitioner's motion for state court transcripts at this time. The Court will decide whether the state court transcripts are necessary to decide Petitioner's claims after Petitioner has an opportunity to submit an amended petition and the Court determines whether those claims will proceed.

IT IS THEREFORE ORDERED that Petitioner's Motion to Consolidate and for Leave to Amend (Doc. 2) is GRANTED in part and DENIED in part, and, within twenty-one (21) days from entry of this Order, Petitioner may file an amended petition asserting all of his claims.

IT IS FURTHER ORDERED that Petitioner's Motion for Summary Judgment in Favor of Double Jeopardy Claim and Memorandum of Law in Support of Motion (Doc. 7) is DENIED without prejudice. IT IS FURTHER ORDERED that Petitioner's Motion for Order to Disclose (Doc. 9) is DENIED without prejudice. IT IS SO ORDERED.