United States District Court, N.D. California
March 22, 2004.
MICHAEL DIXON, Petitioner,
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
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
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.
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