UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
July 3, 2012
CARLOS CORTEZ DOMINGUEZ, PETITIONER,
The opinion of the court was delivered by: Hon. Christina A. Snyder United States District Judge
ORDER: (1) CONSTRUING PETITION FOR WRIT OF HABEAS CORPUS AS MOTION TO AMEND; AND (2) CLOSING THIS ACTION
INTRODUCTION AND SUMMARY
On May 23, 2012, petitioner Carlos Cortez Dominguez ("Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition") challenging his 2010 state court conviction. (Pet. at 1.)*fn1 However, since Petitioner currently has another pending habeas action in this Court, the Petition will be considered for filing in that previously filed action. This action will be closed.
RELEVANT PROCEDURAL HISTORY
On July 29, 2010, Petitioner was convicted in Orange County Superior Court of attempted murder, resisting arrest, and two counts of assault with a deadly weapon. (Pet. at 1, 8); see also People v. Dominguez, 2011 WL 3810236, at *1 (Cal. Ct. App. Aug. 29, 2011). Petitioner appealed, and the California Court of Appeal affirmed the conviction on August 29, 2011. (Pet. at 2.) Petitioner then filed a petition for review in the California Supreme Court, which was denied on November 2, 2011. (Id.)
Petitioner has since filed three federal habeas petitions challenging the same 2010 state court conviction. First, on March 5, 2012, Petitioner filed a federal petition in the Eastern District of California ("First Action"). (See Eastern District Case No. 2:12-CV-0580-DAD.) On March 14, 2012, the First Action was transferred to the Central District of California and remains pending. (See Central District Case No. SA CV 12-0448 CAS (JCG).)
Then, on March 14, 2012, Petitioner filed a second federal habeas petition in this District. (See Central District Case No. SA CV 12-0398 CAS (JCG).) On April 11, 2012, this Court summarily dismissed that petition as being duplicative of the First Action. (See id., Docket No. 4.)
The instant Petition was filed in the Eastern District on May 23, 2012, and transferred here on June 12, 2012. (See Docket No. 4.)
Under the Antiterrorism and Effective Death Penalty Act, a second or successive habeas corpus application must be dismissed unless it meets one of the exceptions listed in 28 U.S.C. § 2244(b)(2). Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). And a new petition is "second or successive" when "it raises claims that were or could have been adjudicated on their merits in an earlier petition." Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001) (per curiam). However, when a pro se petitioner files a new habeas petition "before the adjudication of a prior petition is complete, the new petition should be construed as a motion to amend the pending petition rather than as a successive application." Woods, 525 F.3d at 888, 890 (emphasis added).
Here, Petitioner filed the instant Petition prior to the adjudication of the First Action, which remains pending. (See Central District Case No. SA CV 12-0448 CAS (JCG).) As such, the Petition should be construed as a motion to amend the petition filed in the First Action. See Woods, 525 F.3d at 890. The Court will thus consider the Petition as a filing in the First Action and will close this case as being duplicative.
For the foregoing reasons, IT IS ORDERED as follows:
(1) the Clerk of Court shall file the instant Petition as a Motion to Amend Petition in Central District Case No. SA CV 12-0448 CAS (JCG);
(2) the Clerk of Court shall file this Order in this action and in Central District Case No. SA CV 12-0448 CAS (JCG); and
(3) the Clerk of Court shall close this action as being duplicative.