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Marquiest Leon v. Warden Virga

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


June 21, 2011

MARQUIEST LEON MURPHY, PETITIONER,
v.
WARDEN VIRGA, RESPONDENT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Petitioner, a state prisoner proceeding without counsel, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.

Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

Petitioner challenges his 2004 conviction for two counts of attempted murder. The petition raises two claims. First, petitioner appears to raise a claim of actual innocence based on newly discovered evidence. Second, petitioner argues that his counsel was ineffective for failing to call witnesses at an evidentiary hearing.

Court records indicate that petitioner is proceeding with another habeas action in this court also challenging his 2004 conviction for two counts of attempted murder, 2:08-cv-256 GHK P. The petition filed in 08-256 does not raise either of the claims raised in the instant action. However, on June 7, 2010, 08-256 was stayed so that petitioner could exhaust additional claims.

Petitioner may not proceed with two different habeas actions challenging the same conviction. Accordingly, the petition filed in the instant action is construed as a motion to amend the petition filed in 08-256. See Woods v. Carey, 525 F.3d 886, 888-890 (9th Cir. 2008) (if prior habeas petition still pending when subsequent habeas petition filed, court should not deem subsequent petition successive but instead should construe subsequent petition as motion to amend first habeas petition) Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's motion to proceed in forma pauperis (Dkt. No. 2) be granted;

2. The petition filed in the instant action is construed as a motion to amend the petition filed in 08-256;

3. The Clerk of the Court is directed to file the petition filed in the instant action as an amended petition in 08-256;

4. This action is closed.

mur1551.ord

20110621

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