IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 18, 2011
THOMAS EUGENE MOORE,
FINDINGS AND RECOMMENDATIONS MIKE KNOWLES, ET AL., RESPONDENTS.
The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2000 conviction from the Sacramento Superior Court.
Petitioner indicates in his petition that he has other petition(s) pending as to the judgment he is attacking in the instant petition. A review of the court's own records*fn1 reveal that petitioner has an active habeas action currently proceeding in case Moore v. Horel, CIV S-02-0007 JAM DAD P.
Generally, a habeas petitioner is required to raise all colorable grounds for relief in his first petition. See McFarland v. Scott, 512 U.S. 849, 860 (1994) (O'Connor, J., concurring), Habeas Corpus Rule 2(c). Under § 2244(b)(2), "[a] claim presented in a second or successive habeas corpus application . . . that was not presented in a prior application shall be dismissed. . . ." unless one of two circumstances exist. 28 U.S.C. § 2244(b)(2). However, where a pro se petitioner files a new petition before the district court has adjudicated the petitioner's prior petition, the Ninth Circuit has directed that the court should construe the new petition as a motion to amend the petition rather than as a "second or successive" petition. See Woods v. Carey, 525 F.3d 886, 890 (9th Cir. 2008).
Applying the Ninth Circuit's holding in Woods, the court will construe petitioner's pro se petition filed in this action as a motion to amend his pending habeas petition in case CIV S-02-0007 JAM DAD P. Of course, district courts have discretion to decide whether a motion to amend should be granted. See 28 U.S.C. § 2242; Fed. R. Civ. P. 15(a); see also Woods, 525 F.3d at 890. Whether petitioner should be allowed to amend his petition in case CIV S-02-0007 JAM DAD P is a question properly left to the assigned judge in that earlier filed case.
Based on the foregoing, the undersigned recommends that:
1. The Clerk of the Court be directed to refile petitioner's petition (Doc. 1) in petitioner's earlier filed case, CIV S-02-0007 JAM DAD P;
2. The Clerk of the Court be further directed to refile petitioner's other pending motions (Docs. 12, 13, 14) in the same case; and
3. This action be closed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days after being served with these findings and recommendations, any party may file written objections with the court. Responses to objections shall be filed within 14 days after service of objections. Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).