The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Petitioner is a state prisoner proceeding without counsel, or "pro se." On August 29, 2012, the court ordered respondent to file a response to the petition. However, on October 17, 2012, respondent filed a notice stating that petitioner is challenging the same conviction in an earlier-filed action, which is presently pending. (Dkt. No. 13.)
Petitioner filed his habeas petition in this action on August 2, 2012. Therein, petitioner challenges the May 26, 2010 conviction entered by the El Dorado County Superior Court. However, this court's records reveal that on March 14, 2012, petitioner filed a petition for writ of habeas corpus challenging the same conviction in Case No. 2:12-cv-0651 WBS CKD P.*fn1
This earlier-filed petition is still pending before the court.
Where a pro se petitioner files a new petition before the district court has adjudicated the petitioner's prior petition, the court should construe the newly filed petition as a motion to amend the pending petition rather than as a "second or successive" petition. Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008).
Pursuant to Woods, the court construes petitioner's August 2, 2012 pro se petition as a motion to amend his habeas petition pending in Case No. 2:12-cv-0651 WBS CKD P. Of course, district courts have discretion to decide whether a motion to amend should be granted. See 28 U.S.C. § 2242; Fed. R. Civ. P. 15(a); see also Woods, 525 F.3d at 890. Thus, whether petitioner should be allowed to amend his petition in Case No. 2:12-cv-0651 WBS CKD P is a question properly left to the assigned judge in the earlier-filed case.
Accordingly, IT IS HEREBY ORDERED that:
1. The August 29, 2012 order (dkt. no. 9) is vacated;
2. The Clerk of the Court is directed to re-file petitioner's August 2, 2012 pro se petition (dkt. no. 1), together with a copy of this order, in petitioner's earlier filed case, Case No. 2:12-cv-0651 WBS CKD P; and