IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
July 27, 2012
JOHN ROOD, PETITIONER,
BUTTE COUNTY COURT, RESPONDENT.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Petitioner is a state prisoner proceeding without counsel. Petitioner filed an eight-page petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his 2008 conviction. On June 7, 2012, petitioner was directed to file a legible amended petition. On July 6, 2012, petitioner's address was updated based on a change of address filed in Rood v. Butte County Court, 2:12-cv-1750 CKD. (Dkt. No. 18.)
Review of case number 2:12-cv-1750 CKD reveals that, on June 26, 2012, petitioner filed in the Fresno Division an eight-page legible petition for writ of habeas corpus challenging his 2008 conviction. On July 2, 2012, the legible petition was transferred to the Sacramento Division, and assigned the case number 2:12-cv-1750 CKD. On July 10, 2012, the court granted petitioner thirty days in which to file an affidavit in support of a request to proceed in forma pauperis or pay the appropriate filing fee.
However, the undersigned has compared the petition filed in 2:12-cv-1750 CKD with the original petition filed in the instant action -- the petitions are virtually identical, with the exception that the petition filed in 2:12-cv-1750 CKD is legible. Moreover, in the instant action, petitioner filed a request to proceed in forma pauperis, which was granted on May 21, 2012. (Dkt. No. 13.)
Accordingly, it appears that the petition opened as a new action in case number 2:12-cv-1750 CKD, should have been filed as an amended petition in case number 2:12-cv-0170 KJN.*fn1 Therefore, the Clerk of the Court is directed to file the June 26, 2012 petition in case number 2:12-cv-1750 CKD (dkt. no. 1) in the instant action, 2:12-cv-0170 KJN, as an "Amended Petition." The Clerk of the Court shall terminate case number 2:12-cv-1750 CKD as it is duplicative of the instant action.*fn2 Petitioner's habeas action shall proceed in case number 2:12-cv-0170 KJN.
Because petitioner may be entitled to relief if the claimed violation of constitutional rights is proved, respondent will be directed to file a response to petitioner's habeas petition.
For these reasons, IT IS HEREBY ORDERED that:
1. The Clerk of the Court is directed to:
A. File the June 26, 2012 petition filed in case number 2:12-cv-1750 CKD (dkt. no. 1) in the instant action, 2:12-cv-0170 KJN, as an "Amended Petition";
B. Terminate case number 2:12-cv-1750 CKD; and
C. Serve a copy of this order on Deputy Attorney General Brian G. Smiley.
2. Petitioner shall file all further filings concerning his habeas action in the Sacramento Division of the United States District Court, 501 I Street, Sacramento, California 95814, and shall include the case number 2:12-cv-0170 KJN on any further filing.
3. Respondent is directed to file a response to petitioner's amended habeas petition within sixty days from the date of this order. See Rule 4, 28 U.S.C. foll. § 2254. An answer shall be accompanied by all transcripts and other documents relevant to the issues presented in the petition. See Rule 5, 28 U.S.C. foll. § 2254.
4. If the response to the habeas petition is an answer, petitioner's reply, if any, shall be filed and served within thirty days after service of the answer.
5. If the response to the habeas petition is a motion, petitioner's opposition or statement of non-opposition to the motion shall be filed and served within thirty days after service of the motion, and respondent's reply, if any, shall be filed and served within fourteen days thereafter.