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Bernardo Colon v. Brenda Cash

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 31, 2011

BERNARDO COLON,
PETITIONER,
v.
BRENDA CASH, WARDEN,
RESPONDENT.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DEEMING MOTION (DOC. 3) TO BE IN PART A BRIEF IN SUPPORT OF THE PETITION (DOCS. 3, 1)

ORDER DISMISSING IN PART THE MOTION AS MOOT, AND DENYING THE MOTION IN PART (DOC. 3)

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to

28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is Petitioner's "MOTION TO FILE DIRECT APPEAL AS PETITIONER'S PETITION FOR HABEAS CORPUS," which was filed in the United States District Court for the Central District of California in conjunction with the petition on July 6, 2011, and transferred to this Court on August 25, 2011. (Doc. 3.)

Petitioner, an inmate of the California State Prison, Los Angeles, raises in the petition challenges to a sentence and underlying convictions sustained in 2008 in the Superior Court of the State of California, County of Kern. Petitioner raises four issues that were discussed in the opinion that issued on direct appeal from the California Court of Appeal, Fifth Appellate District (DCA) (pet. 46-88), and were addressed in a petition for review filed on behalf of Petitioner in the California Supreme Court (pet. 14-44). (Pet. 3-4, 6-7, 10.) Petitioner did not submit a separate brief or memorandum in support of the petition.

In his "MOTION TO FILE DIRECT APPEAL AS PETITIONER'S PETITION FOR HABEAS CORPUS," Petitioner informs the Court that he seeks to raise in the petition before this Court the issues that he raised in the state courts on direct appeal. The motion thus appears to constitute in part a brief on the merits. The motion is thus DEEMED to be in part a brief in support of the petition.

Further, to the extent that Petitioner seeks to raise the issues he has already raised, Petitioner's motion is DISMISSED as moot because Petitioner has already raised the issues in his petition.

In his motion, Petitioner also seeks the Court to accept and file unspecified "ATTACHED DIRECT APPEAL TRANSCRIPTS," but no transcripts are attached. (Mot. 1.) Petitioner has already incorporated by reference the appellate opinion and the petition for review, which are attached to the petition. See, Fed. R. Civ. P. 10(c). *fn1 Accordingly, insofar as Petitioner seeks to

submit transcripts, his motion is DISMISSED as moot, without prejudice to a renewed motion which contains specific attachments.

Petitioner also seeks the Court to give him legal advice concerning an issue regarding which there may have been or will be a question concerning preservation of the issue for review. The Court is unable to give legal advice, and thus, to the extent that Petitioner seeks legal advice in the motion, the motion is DENIED.

IT IS SO ORDERED.


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