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Walter Shane Langston v. Gary Swarthout

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


May 13, 2013

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

ORDER

On March 15, 2013, petitioner, a state prisoner without counsel, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition challenges a May 21, 2010 conviction in the Sacramento County Superior Court. Dckt. No. 1 at 1.

A review of the court's records reveal that petitioner has filed multiple actions challenging his May 21, 2010 conviction. On June 19, 2012, petitioner filed his first federal habeas action challenging his May 21, 2010 conviction. That action remains pending for decision. See Langston v. Swarthout,Case No. 2:12-cv-1633 JFM. On February 1, 2013, petitioner filed another habeas petition challenging the same conviction. See Langston v. Swarthout, Case No. 2:13-cv-0197. In the second action, the assigned magistrate judge construed the petition as a motion to amend the habeas petition filed in the first action, directed the Clerk of the Court to file a copy of the second petition in the first action, and ordered the second case closed.

Along with the instant petition, petitioner has filed a motion to stay the proceedings. Dckt. No. 4. In his motion, petitioner explains that he currently has another petition pending, Case No. 2:12-cv-1633 JFM, and that the court should therefore construe his new petition as a motion to amend. Dckt. No. 4. Petitioner is correct that when a new petition is filed in a district court while a previously filed petition is pending, the new petition should be construed as a motion to amend. Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). Accordingly, the instant petition should have been filed in the first-filed action and this case should not have been opened.

Petitioner is admonished that all challenges to his May 21, 2010 conviction must be brought in single petition. Thus, any new claims petitioner wishes to assert must be filed in Langston v. Swarthout, Case No. 2:12-cv-01633. Further, all pleadings must contain the case number assigned to the first-filed action (Case No. 2:12-cv-01633). Any claim not asserted in the first-filed action may be barred as second or successive. See 28 U.S.C. § 2244(b).

Accordingly, it is hereby ORDERED that:

1. The Clerk of the Court shall file, in Langston v. Swarthout, Case No. 2:12-cv-1633, a copy of this order together with the petition, Dckt. No. 1, and motion to stay, Dckt. No. 4, filed in the instant case; and

2. The Clerk of the Court is directed to close this case.

20130513

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