Murphy v. Virga
Filing
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ORDER signed by Magistrate Judge Kendall J. Newman on 06/21/11 granting 2 Motion to Proceed IFP. The petition filed in the instant action is construed as a motion to amend the petition filed in 08-cv-256. The clerk of the court is directed to file the petition filed in the instant action as an amended petition in 08-cv-256. This action is closed. (Plummer, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MARQUIEST LEON MURPHY,
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Petitioner,
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No. 2: 11-cv-1551 KJN P
vs.
WARDEN VIRGA,
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Respondent.
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ORDER
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Petitioner, a state prisoner proceeding without counsel, has filed a petition for a
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writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in
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forma pauperis.
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Examination of the in forma pauperis application reveals that petitioner is unable
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to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be
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granted. See 28 U.S.C. § 1915(a).
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Petitioner challenges his 2004 conviction for two counts of attempted murder.
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The petition raises two claims. First, petitioner appears to raise a claim of actual innocence
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based on newly discovered evidence. Second, petitioner argues that his counsel was ineffective
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for failing to call witnesses at an evidentiary hearing.
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Court records indicate that petitioner is proceeding with another habeas action in
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this court also challenging his 2004 conviction for two counts of attempted murder, 2:08-cv-256
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GHK P. The petition filed in 08-256 does not raise either of the claims raised in the instant
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action. However, on June 7, 2010, 08-256 was stayed so that petitioner could exhaust additional
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claims.
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Petitioner may not proceed with two different habeas actions challenging the same
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conviction. Accordingly, the petition filed in the instant action is construed as a motion to amend
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the petition filed in 08-256. See Woods v. Carey, 525 F.3d 886, 888-890 (9th Cir. 2008) (if prior
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habeas petition still pending when subsequent habeas petition filed, court should not deem
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subsequent petition successive but instead should construe subsequent petition as motion to
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amend first habeas petition)
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Accordingly, IT IS HEREBY ORDERED that:
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1. Petitioner’s motion to proceed in forma pauperis (Dkt. No. 2) be granted;
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2. The petition filed in the instant action is construed as a motion to amend the
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petition filed in 08-256;
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3. The Clerk of the Court is directed to file the petition filed in the instant action
as an amended petition in 08-256;
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4. This action is closed.
DATED: June 21, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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mur1551.ord
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