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Montemayor v. Evans

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


November 15, 2008

RUBEN MONTEMAYOR, PETITIONER,
v.
M.S. EVANS, WARDEN RESPONDENT.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER GRANTING RESPONDENT'S REQUEST TO CONSOLIDATE, DIRECTING CLERK OF COURT TO FILE INSTANT AS MOTION TO AMEND IN AND ADMINISTRATIVELY CLOSING THIS ACTION [Doc.12]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Petitioner previously filed a petition for writ of habeas corpus on July 16, 2005, in case number 1:05-cv-00944-WMW HC. After Respondent filed an answer, Petitioner sought a stay of the action to exhaust a claim under the Supreme Court's holding in Cunningham v. California, 549 U.S. 270 (2007). On January 8, 2008, the court granted the stay and instructed Petitioner to file a status report every sixty days indicating the progress of the case in state court. (Court Doc. 16 in 1:05-cv-00944-WMW HC.) Petitioner failed to file any status reports, and the Court issued an order to show cause why the action should not be dismissed for failure to comply with the court's order. (Court Doc. 19.) Petitioner failed to respond to the order to show cause and the case was dismissed on July 9, 2008. (Court Doc. 20.)

However, on July 3, 2008, six days prior to the dismissal of the first action, Petitioner constructively filed another petition challenging the same judgment and raising essentially the same claims.*fn1 The petition was filed and a new case number was opened (1:08-cv-0981-OWWDLB (HC)). On August 12, 2008, the Court directed Respondent to file a response to the petition. On October 14, 2008, Respondent filed a request to consolidate this case with the prior case (1:05-cv-00944-WMW (HC)). (Court Doc. 12.) Respondent's request shall be granted.

Because the instant petition was constructively filed six days prior to the dismissal of the prior case, it should be construed as a motion to amend the petition in 1:05-cv-00944-WMW (HC).

Accordingly, it is HEREBY ORDERED that:

1. Respondent's request to consolidate the cases is GRANTED;

2. The instant petition for writ of habeas corpus shall be filed in 1:05-cv-00944-WMW (HC) as a motion to amend; and,

3. The instant action is ADMINISTRATIVELY CLOSED.

IT IS SO ORDERED.


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