Dunn v. Pollard
- Proceeding
- district
- Area
- civil
- Panel
- Janis L. Sammartino (author)
Analysis
The court reviewed a second habeas corpus petition filed by a pro se prisoner challenging the same conviction as a pending first petition. The court directed the Clerk to file the second petition as a motion to amend the pending petition in the first case.
| What the court decided | The model |
|---|---|
The petition in Case No. 20-cv-0844 is directed to be filed as a motion to amend the petition in Case No. 19-cv-1554.“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. 19-cv-1554 LAB (MSB).” | agree with court The decision follows the Ninth Circuit precedent cited in the order, which mandates that a new pro se habeas petition challenging the same conviction while another is pending be construed as a motion to amend the pending petition. |
The order itself: sound — The order correctly identifies the procedural posture (a second petition challenging the same conviction while the first is pending) and applies the specific Ninth Circuit rule from Woods v. Carey to resolve the duplication. The reasoning is direct and supported by the cited authority.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RONNELL ROBIN DUNN, Case No.: 20-CV-0844 JLS (RBB)
12 Petitioner, ORDER DIRECTING CLERK TO 13 v. FILE PETITION IN THIS CASE AS A MOTION TO AMEND PETITION 14 MARCUS POLLARD, IN CASE NO. 19-CV-1554 LAB (MSB) 15 Respondent. 16 17 On August 16, 2019, Petitioner, a state prisoner proceeding pro se, filed a petition 18 for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court in Case No. 19 19-cv-1554 LAB (MSB) seeking to challenge his conviction in San Diego Superior Court 20 Case No. SCE374204. (See Dunn v. Diaz, 19-cv-1554 LAB (MSB) (S.D. Cal.)). On March 21 6, 2020, the Honorable Larry Burns issued an Order Setting Briefing Schedule in Case No. 22 19-cv-1554 LAB (MSB). (See ECF No. 9, Case No. 19-cv-1554 LAB (MSB).) 23 Respondent filed an Answer on April 21, 2020. (See ECF No. 10, Case No. 19-cv-1554 24 LAB (MSB).) Petitioner’s Traverse is due June 5, 2020. (See ECF No. 9, Case No. 19- 25 cv-1554 LAB (MSB).) 26 On May 4, 2020, Petitioner filed another petition for writ of habeas corpus pursuant 27 to 28 U.S.C. § 2254 in this Court seeking to challenge the same conviction as he does in 28 /// 1 No. 19-cv-1554 LAB (MSB). That petition was given Case No. 20-cv-0844 JLS 2 ||(RBB). (See Dunn v. Pollard, 20-cv-0844 JLS (RBB) (S.D. Cal.)). 3 In Woods v. Carey, 525 F.3d 886 (9th Cir. 2008), the Ninth Circuit stated that when 4 pro se petitioner has a 28 U.S.C. § 2254 petition pending in a district court and files a 5 ||new 28 U.S.C. § 2254 petition, “the district court should . . . construe [the new] pro se 6 || habeas petition as a motion to amend his pending habeas petition.” Jd. at 890. Accordingly, 7 Clerk of Court is DIRECTED to file the petition in this case (ECF No. 1) as a motion 8 ||to amend the petition in Case No. 19-cv-1554 LAB (MSB). 9 IT IS SO ORDERED. 10 ||Dated: May 26, 2020 tt 11 pee Janis L. Sammartino 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28