Conyers v. Gastillo
- Proceeding
- district
- Area
- civil
- Panel
- Michael M. Anello (author)
Analysis
The court reviewed a new habeas corpus petition filed by a pro se petitioner who already had a pending habeas case in the same district. The court directed the Clerk to file the new petition as a motion to amend the pending case and denied the motion to proceed in forma pauperis as moot.
| What the court decided | The model |
|---|---|
Directing the Clerk of Court to file the petition in the current case as a motion to amend and amended petition in case no. 18cv0085 JLS (KSC)“Accordingly, the Clerk of Court is DIRECTED to file the petition in this case [ECF No. 1] as a motion to amend and amended petition in case no. 18cv0085 JLS (KSC).” | agree with court The order correctly identifies that the new filing is a duplicate of the pending habeas petition plus one new claim, and applies the Ninth Circuit rule that such filings by pro se petitioners should be construed as motions to amend the pending petition rather than new cases. |
Denying the motion to proceed in forma pauperis as moot“For the foregoing reasons, the motion to proceed in forma pauperis [ECF No. 2] is DENIED as moot.” | agree with court Because the petition is being transferred to the pending case as an amendment, the current case is being closed, rendering the IFP motion in this specific docket moot. |
The order itself: sound — The order correctly applies the binding Ninth Circuit precedent from Woods v. Carey to the specific facts of a pro se petitioner filing a duplicate petition with an additional claim while a stay and abeyance was in effect. The reasoning is concise and directly addresses the procedural posture.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DWAYNE CONYERS, Case No.: 19cv1504 MMA (MDD)
12 Petitioner, ORDER: (1) DIRECTING CLERK 13 v. OF COURT TO FILE PETITION IN THIS CASE [ECF No. 1] AS A 14 JOSIE GASTILLO, Warden, et al., MOTION TO AMEND AND 15 Respondents. AMENDED PETITION IN CASE NO. 18cv0085 JLS (KSC); and (2) 16 DENYING MOTION TO PROCEED 17 IN FORMA PAUPERIS [ECF No. 2] AS MOOT 18 19 On January 12, 2018, Petitioner filed a petition for writ of habeas corpus in this 20 Court which contained three claims and which was given case no. 18cv0085 JLS (KSC). 21 See Conyers v. Gastelo, S.D. Cal. case no. 18cv0085 JLS (KSC). The Court later granted 22 Petitioner’s request for stay and abeyance in case no. 18cv0085 JLS (KSC) to permit 23 Petitioner to return to state court to exhaust an additional claim. Id., ECF No. 18. 24 Petitioner was directed to file a motion to amend his petition and a fully exhausted 25 amended petition in case no. 18cv0085 JLS (KSC) once he had exhausted his new claim. 26 Id. 27 On August 9, 2019, Petitioner filed a petition for writ of habeas corpus in this case. 28 The Petition attacks the same conviction and contains the same three claims as the 1 || petition in case no. 18cv0085 JLS (KSC) as well as the fourth claim Petitioner sought to 2 exhaust in that case. See ECF No. 1. The Petition filed in this case appears to be 3 || Petitioner’s attempt to file a motion to amend and an amended petition in case no. 4 || 18cv0085 JLS (KSC). Accordingly, the Clerk of Court is DIRECTED to file the petition 5 ||in this case [ECF No. 1] as a motion to amend and amended petition in case no. 6 || 18cv0085 JLS (KSC). See Woods v. Carey, 525 F.3d 886, 890 (9th Cir 2008) (stating 7 when a pro se petitioner has a 28 U.S.C. § 2254 petition pending in a district court 8 || and files a new 28 U.S.C. § 2254 petition, “the district court should .. . construe[ a] pro 9 || se habeas petition as a motion to amend his pending habeas petition.’’) 10 For the foregoing reasons, the motion to proceed in forma pauperis [ECF No. 2] is 11 ||] DENIED as moot. The Clerk of Court is directed to close this case. 12 IT IS SO ORDERED. 13 ||Dated: August 16, 2019 Mikel Ll 14 Hon. Michael tells 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28