Cross v. State of California
Filing
6
ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/9/2011 ORDERING the clerk to re-file the instant petition in Civil Action No. 2:11-cv-1665 JAM CKD P; the $5.00 filing fee paid in this action shall be applied as the filing fee in Civil Action No. 2:11-cv-1665 JAM CKD P; and this action is DISMISSED without prejudice as duplicative of Civil Action No. 2:11-cv-1665 JAM CKD P, and this case is closed. CASE CLOSED. (cc: Financial)(Yin, K)
<![CDATA[
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
JAMES PAUL CROSS,
11
Petitioner,
12
No. CIV S-11-1801 CKD P
vs.
13
STATE OF CALIFORNIA,
14
Respondent.
15
ORDER
/
16
Petitioner is a state prisoner proceeding pro se with an application for writ of
17
habeas corpus under 28 U.S.C. § 2254. He has paid the filing fee and consented to the
18
jurisdiction of the magistrate judge under 28 U.S.C. § 636(c).
19
Prior to his filing the instant petition, petitioner instituted Civil Action No. 2:11-
20
cv-1665 by filing a request for a sixty-day extension to submit a petition for writ of habeas
21
corpus in the first instance; that is, he sought additional time without having already filed an
22
initial pleading. On June 29, 2011, the court denied his motion for additional time without
23
prejudice and informed petitioner that he had thirty days in which to file a petition or the action
24
would be dismissed. See Civil Action No. 2:11-cv-1665 (Docket No. 4). The court instructed
25
petitioner that “the petition must bear the docket number assigned to this case[.]” Id. at 2.
26
\\\\
1
1
On July 8, 2011, the court received a petition from petitioner. However,
2
petitioner did not include the case number of the previously filed case in which he had thirty days
3
to avoid dismissal. The petition therefore received a new case number and the Clerk of Court
4
opened a new case. In the meantime, no petition was recorded as filed in the first case, and on
5
August 9, 2011, the court recommended that the first-filed action be closed for petitioner’s
6
apparent failure to prosecute. See Civil Action No. 2:11-cv-1665 (Docket No. 7). Petitioner
7
timely objected to that recommendation, arguing that he had in fact complied with the June 29
8
order by filing the unnumbered petition that triggered the opening of this case.
9
As a result of petitioner’s failure to write the already existing case number on his
10
petition, the court is now presented with essentially duplicative actions. In such a circumstance,
11
this court ordinarily orders the later-filed petition to be re-filed in the first action and dismisses
12
the later action. There is no reason not to employ that practice here.
13
Accordingly, IT IS HEREBY ORDERED that:
14
1. The Clerk of Court is directed to re-file the instant petition in Civil Action No.
15
2:11-cv-1665 JAM CKD P.
16
17
2. The $5.00 filing fee paid in this action shall be applied as the filing fee in
Civil Action No. 2:11-cv-1665 JAM CKD P.
18
19
20
3. This action is dismissed without prejudice as duplicative of Civil Action No.
2:11-cv-1665 JAM CKD P, and this case is closed.
Dated: November 9, 2011
21
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
22
23
24
hm
25
cros1801.ord
26
2
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
