Seavon Pierce v. Hedgepeth
Filing
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ORDER DISMISSING CASE by Judge Virginia A. Phillips, If Petitioner wants to litigate his new claims, he should file, in Case NO. EDCV 09-310, a motion for leave to amend in which he clearly identifies the new claims he seeks to add, and shows that th ey are exhausted and timely. It is therefore ORDERED that judgment be entered dismissing this action as duplicating Case No. EDCV 09-310. Dismissal is without prejudice to filing a motion for leave to amend in No. EDCV 09-310. re Petition for Writ of Habeas Corpus (2254) 1 (SEE ORDER FOR FURTHER DETAILS) (lmh)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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SEAVON PIERCE,
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Petitioner,
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v.
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HEDGEPETH (WARDEN),
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Respondent.
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______________________________)
No. EDCV 10-820-VAP(CW)
ORDER OF DISMISSAL
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The present habeas corpus petition was filed on June 3, 2010.
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The pro se petitioner is a prisoner in state custody pursuant to a
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2006 conviction in California Superior Court, Riverside County, Case
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No. SWF 002212.
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subject of a habeas petition filed by Petitioner under 28 U.S.C.
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§ 2254 which is still pending in this court as Pierce v. Sullivan, No.
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EDCV 09-310-VAP(CW).
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Petitioner in this court which challenges the same conviction and
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sentence.1
The validity of this conviction (and sentence) is the
The present petition is the third filed by
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On April 29, 2010, judgment was entered dismissing the second
(continued...)
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DISCUSSION
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A federal district court may entertain a habeas petition on
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behalf of a person who is in custody under a state court judgment and
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in violation of the Constitution, laws, or treaties of the United
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States.
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order a return if it appears from the petition that the petitioner is
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not entitled to relief.
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Section 2254 Cases, 28 foll. § 2254.
28 U.S.C. 2254(a).
The court need neither grant the writ nor
28 U.S.C. § 2243; Rule 4, Rules Governing
A federal habeas petitioner is
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required to “specify all the grounds for relief which are available to
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the petitioner” and should address the judgment or judgments of a
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single state court.
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does not substantially comply with Rule 2 it may be rejected with a
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statement of the reason for its rejection.
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§ 2254.
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rule.
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Rules of Civil Procedure.
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Rule 2(c)-(d), 28 foll. § 2254.
If a petition
Rule 2(e), 28 foll.
A petition may be amended or supplemented as provided by
28 U.S.C. 2242; Rule 11, 28 foll. § 2254; Rule 15, Federal
Under the applicable rules and statutes, Petitioner should have
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included all of his claims for federal habeas relief from the same
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state conviction in his prior and pending petition.
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indication that Petitioner has any claims, cognizable on federal
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habeas review, that could be raised in the present action but not in
There is no
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(...continued)
petition filed by Petitioner challenging this conviction, Pierce v.
Hedgpeth (Warden), Case No. EDCV 10-474-VAP (CW), as duplicative,
without prejudice to Petitioner filing a motion for leave to amend in
Case No. EDCV 09-310. The Ninth Circuit denied Petitioner a
certificate of appealability on June 15, 2011. To date, Petitioner
has not filed a motion for leave to amend (or supplement) his Petition
in Case No. EDCV 09-310.
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No. EDCV 09-310.
Rather than filing the present new petition,
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Petitioner should have filed a motion for leave to amend in No. EDCV
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09-310.
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the prior petition in order to include the new claims, provided that
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he has met the other requirements for presenting habeas claims in
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federal court, such as the requirement of first exhausting state court
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remedies, see 28 U.S.C. § 2254(b)-(c), and the statute of limitations
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at 28 U.S.C. § 2244(d).
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petition in Case No. EDCV 09-310 to include any new claims from the
There is no evident reason why he cannot now move to amend
If Petitioner is able to amend the pending
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present petition, the new claims would receive the same consideration
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that they would if presented in a separate action.
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The court has discretion to dismiss a pleading “that merely
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repeats pending or previously litigated claims.”
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States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995).
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can, at most, only repeat claims that have been or should have been
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raised in Petitioner’s pending, previously filed action.
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the present petition should be summarily dismissed.
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Cato v. United
The present petition
Therefore,
If Petitioner wants to litigate his new claims, he should file,
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in Case NO. EDCV 09-310, a motion for leave to amend in which he
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clearly identifies the new claims he seeks to add, and shows that they
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are exhausted and timely.
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ORDERS:
It is therefore ORDERED that judgment be entered dismissing this
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action as duplicating Case No. EDCV 09-310.
Dismissal is without
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prejudice to filing a motion for leave to amend in No. EDCV 09-310.
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DATED:
September 13, 2011
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VIRGINIA A. PHILLIPS
United States District Judge
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Presented by:
Dated: September 12, 2011
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CARLA M. WOEHRLE
United States Magistrate Judge
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