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Clarence Roberson v. Tim Virga

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


July 1, 2011

CLARENCE ROBERSON, PETITIONER,
v.
TIM VIRGA, RESPONDENT.

ORDER

Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus. See 28 U.S.C. § 2254. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to the parties' consent. See 28 U.S.C. § 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(3).

Respondent requests judicial notice of an earlier filed action by petitioner as well as consolidation of this action with the earlier filed action. Dckt. No. 9. Respondent's request for judicial notice is granted. Rather than consolidate the actions, however, the court will direct the Clerk of the Court to close this action because it appears to have been opened in error.

On February 11, 2011, petitioner commenced a habeas action, designated Roberson v. People of the State of California, Case No. CIV-S-11-0386 EFB P. In that action, petitioner challenges a November 7, 2008 judgment entered by the Sacramento County Superior Court. On March 2, 2011, petitioner requested leave to amend in order to name the warden as the respondent and to serve the petition on the Attorney General's Office. On March 7, 2011, the court granted petitioner 30 days within which to file an amended petition. No amended petition was filed in that action.

On March 25, 2011, petitioner commenced this action by filing a petition for writ of habeas corpus, which also challenges the November 7, 2008 judgment entered by the Sacramento County Superior Court. Dckt. No. 1. The petition filed in this action is nearly identical to the earlier filed petition, but names the warden as respondent and adds the Attorney General's Office to the proof of service. It appears that the petition filed in this action should have instead been filed in the earlier action as an amended petition. Therefore, the court finds that this action was opened in error and should be closed, and that the petition filed in this action should be re-docketed as an amended petition in petitioner's earlier filed action.

Accordingly, IT IS HEREBY ORDERED that: 1. The Clerk of the Court shall file the March 25, 2011 petition (Dckt. No. 1) and a copy of this order in Case No. CIV-S-11-0386 EFB P. The March 25, 2011 petition shall be docketed in Case No. CIV-S-11-0386 EFB P as an "Amended Petition."

2. The Clerk of the Court is directed to close this case.

20110701

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