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Walter Shane Langston v. Gary Swarthout

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


May 7, 2013

WALTER SHANE LANGSTON, PETITIONER,
v.
GARY SWARTHOUT, RESPONDENT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Petitioner seeks reconsideration of this court's order and judgment entered March 22, 2013, wherein the court construed the petition for writ of habeas corpus filed herein as a motion to amend the petition pending in Langston v. Swarthout, Case No. 2:12-cv-01633 JFM. (See Dkt. Nos. 7, 8, herein.) Petitioner seeks reconsideration*fn2 on the ground that the court's construction of the instant petition compromises his action in Case No. 2:12-cv-01633 JFM. Petitioner asserts that respondent defaulted in the first-filed action, thus entitling petitioner to the requested relief,*fn3 and that construing the instant petition as a motion to amend petitioner's first-filed action "gives the respondent a second bite at the apple . . .[to] use the new amendment as an loop hole opportunity, to respond (sic)." (Dkt. No. 9 at 1.)

The undersigned is without authority to reopen the instant case. The petition filed in the instant case must be construed as a motion to amend petitioner's first-filed petition. See Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). Petitioner's concerns regarding the merits of Case No. 2:12-cv-01633 JFM, must be raised in that action.

Accordingly, IT IS HEREBY ORDERED that petitioner's request for reconsideration (Dkt. No. 9), is denied.


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