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Overton v. Warden

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 21, 2009

MICHAEL LEWIS OVERTON, PETITIONER,
v.
WARDEN, CALIFORNIA MEDICAL FACILITY, RESPONDENT.

ORDER

Petitioner, a state prisoner proceeding pro se, commenced this action by filing a form civil rights complaint pursuant to 42 U.S.C. § 1983. By order filed August 21, 2008, petitioner was granted leave to proceed in forma pauperis and the initial complaint was dismissed with leave to file either an amended complaint or a habeas corpus petition. After receiving an extension of time, on November 10, 2008, petitioner filed a petition for writ of habeas corpus.*fn1

By order filed November 19, 2008, petitioner's petition was dismissed with leave to amend to name the proper respondent. See Order filed November 19, 2008 (quoting Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994) (citing Rule 2(a), 28 U.S.C. foll. § 2254)). On December 29, 2008, petitioner filed a second amended petition.

In the second amended petition, petitioner has cured the defect identified in the court's November 19, 2008 order in that petitioner has now named the proper respondent in this action. However, by the amended petition filed November 10, 2008, petitioner challenged a decision of the California Board of Parole Hearings denying him parole. In the second amended petition, petitioner's first claim for relief challenges his commitment offense. His second and third claims for relief refer to an "'attached' writ of habeas corpus" but there is no petition for writ of habeas corpus attached to the second amended petition.

Petitioner was convicted in Alameda County Superior Court. While both this Court and the United States District Court in the district where petitioner was convicted have jurisdiction, see Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973), any and all witnesses and evidence necessary for the resolution of petitioner's application are more readily available in Alameda County. Id. at 499 n.15; 28 U.S.C. § 2241(d). If in fact petitioner is challenging his commitment offense, this action will be transferred to the United States District Court for the Northern District of California. However, because the basis for petitioner's second and third claims for relief are not clear from the second amended petition, that petition will be dismissed and petitioner will be given an opportunity to file a third amended petition. Petitioner is cautioned that he must file separate petitions to challenge his commitment offense and a denial of parole; he cannot challenge both in the same action. See Rule 2(e), 28 U.S.C. foll. § 2254 ("A petitioner who seeks relief from judgments of more than one state court must file a separate petition covering the judgment or judgments of each court.")

In accordance with the above, IT IS HEREBY ORDERED that:

1. Petitioner's second amended petition is dismissed with leave to amend;

3. Within thirty days from the date of this order, petitioner shall complete the attached Notice of Amendment and submit the following documents to the court:

a. The completed Notice of Amendment; and

b. An original and one copy of the Third Amended Petition.

4. Any third amended petition must bear the case number assigned to this action and the title "Third Amended Petition"; and

5. The Clerk of the Court is directed to send petitioner the court's form for application for writ of habeas corpus.

NOTICE OF AMENDMENT

Petitioner hereby submits the following document in compliance with the court's order filed

______________ Third Amended Petition

NOTICE OF AMENDMENT

Petitioner hereby submits the following document in compliance with the court's order filed ______________ Second Amended Habeas Corpus Petition


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