Gutierrez-Pizano v. Britten - Document 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA MIGUEL GUTIERREZ-PIZANO, Petitioner, v. FRED BRITTEN, Respondent. ) ) ) ) ) ) ) ) ) 8:09CV45 MEMORANDUM AND ORDER This matter is before the court on the Petitioner's Motion for Leave to Proceed in Forma Pauperis. (Filing No. 2.) The court has carefully reviewed the Petition for Writ of Habeas Corpus filed in this case (filing no. 1) and finds that it should be dismissed for the reasons set forth below. The Petitioner filed a Petition for Writ of Habeas Corpus on November 3, 2008, in this court. See Gutierrez-Pizano v. Britten, Case Number 8:08CV494. The Petitioner failed to sign the Petition in that matter. (Case No. 8:08CV494, Filing No. 1.) On December 30, 2008, the court ordered him to submit a signed Petition. (Case No. 8:08CV494, Filing No. 12.) On February 2, 2009, the Petitioner instead filed a separate Petition for Writ of Habeas Corpus in this case. (Filing No. 1.) The Petition here is identical to that filed in Case Number 8:08CV494 (case number 8:08CV494, filing no. 1), except the Petition was signed and typewritten. The court finds that the Petition for Writ of Habeas Corpus in this matter should be filed in Case Number 8:08CV494 as an Amended Petition and that this matter should be dismissed because it is duplicative. IT IS THEREFORE ORDERED that: 1. The Petition for Writ of Habeas Corpus (filing no. 1) is dismissed without prejudice to reassertion in Case No. 8:08CV494.  2. The Clerk of the court is directed to file the Petition for Writ of Habeas Corpus dismissed by this Memorandum and Order (filing no. 1) as the Petitioner's Amended Petition for Writ of Habeas Corpus in Case Number 8:08CV494. 3. The Clerk of the court is directed to mail copies of this Memorandum and Order and the Amended Petition for Writ of Habeas Corpus in Case Number 8:08CV494 to Respondent and the Nebraska Attorney General by regular first class mail. 4. The Petitioner's Motion for Leave to Proceed in Forma Pauperis (filing no. 2) is denied as moot. 5. A separate Judgment will be entered in accordance with this Memorandum and Order. Dated March 10, 2009. BY THE COURT s/ Warren K. Urbom United States Senior District Judge 2