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DIXON v. CAREY

United States District Court, N.D. California


March 22, 2004.

MICHAEL DIXON, Petitioner,
v.
TOM L. CAREY, Warden, Respondent

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

ORDER OF DISMISSAL

This matter, filed by a pro se California prisoner, consists entirely of a traverse to a petition for a writ of habeas corpus. Article III, Section 2 of the United States Constitution restricts adjudication in federal courts to "Cases" and "Controversies." See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982). In the absence of an actual petition for a writ of habeas corpus or other civil complaint, there is no case or controversy for this Court to adjudicate. Moreover, the traverse filed herein relates to the habeas petition which petitioner previously filed in this Court, No. 01-4974 MMC (PR). There is no need to have two separate cases for a single petition. Accordingly, this case will be dismissed.

Petitioner should not file the traverse in his other case. The petition in case number 01-4974 MMC (PR) is currently stayed pending his exhaustion of three claims in the state courts. Petitioner attaches to the traverse filed herein a one — line opinion from the California Page 2 Supreme Court denying a habeas petition he filed there. If petitioner has now exhausted additional claims upon which he would like to receive habeas relief, he must not raise them in a traverse. Rather, the December 16, 2003 Order Staying Petition directed him to raise any newly exhausted claims in a Third Amended Petition. His Third Amended Petition must be on the Court's form for habeas petitions, must include the civil case number No. C 01-4974 MMC (PR), and must include the words THIRD AMENDED PETITION on the first page. Petitioner must include in the Third Amended Petition all the claims he wishes to present, including both the claims from the Second Amended Petition and any newly exhausted claims. He may not incorporate material from prior petitions by reference, and any claims he fails to include in the Third Amended Petition will not be considered.

  The action is hereby DISMISSED. In light of this dismissal, the ifp application is DENIED and no fee is due.

  The Clerk shall close the file and terminate any pending motions.

  IT IS SO ORDERED.

20040322

© 1992-2004 VersusLaw Inc.



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