(HC) Moore v. Knowles, No. 2:2009cv02838 - Document 15 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 1/18/2011 RECOMMENDING that 1 Petition for Writ of Habeas Corpus, 12 MOTION Order to Show Cause MOTION to APPOINT COUNSEL, 13 MOTION for Discovery, and 14 MOTION for Evidentiary Hearing be refiled in petitioner's earlier case (2:02-cv-0007 JAM DAD) and that this case be closed. Findings and Recommendations referred to Judge Garland E. Burrell, Jr. Objections due within 14 days after being served with these findings and recommendations. (Donati, J)

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(HC) Moore v. Knowles Doc. 15 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS EUGENE MOORE, 12 Petitioner, 13 14 No. CIV S-09-2838-GEB-CMK-P vs. FINDINGS AND RECOMMENDATIONS MIKE KNOWLES, et al., 15 Respondents. 16 / 17 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2000 conviction from the 19 Sacramento Superior Court. 20 Petitioner indicates in his petition that he has other petition(s) pending as to the 21 judgment he is attacking in the instant petition. A review of the court’s own records1 reveal that 22 petitioner has an active habeas action currently proceeding in case Moore v. Horel, CIV S-02- 23 0007 JAM DAD P. 24 /// 25 1 26 A court may take judicial notice of court records. See United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 1 Dockets.Justia.com 1 Generally, a habeas petitioner is required to raise all colorable grounds for relief 2 in his first petition. See McFarland v. Scott, 512 U.S. 849, 860 (1994) (O’Connor, J., 3 concurring), Habeas Corpus Rule 2(c). Under § 2244(b)(2), “[a] claim presented in a second or 4 successive habeas corpus application . . . that was not presented in a prior application shall be 5 dismissed. . . .” unless one of two circumstances exist. 28 U.S.C. § 2244(b)(2). However, 6 where a pro se petitioner files a new petition before the district court has adjudicated the 7 petitioner’s prior petition, the Ninth Circuit has directed that the court should construe the new 8 petition as a motion to amend the petition rather than as a “second or successive” petition. See 9 Woods v. Carey, 525 F.3d 886, 890 (9th Cir. 2008). 10 Applying the Ninth Circuit’s holding in Woods, the court will construe 11 petitioner’s pro se petition filed in this action as a motion to amend his pending habeas petition 12 in case CIV S-02-0007 JAM DAD P. Of course, district courts have discretion to decide 13 whether a motion to amend should be granted. See 28 U.S.C. § 2242; Fed. R. Civ. P. 15(a); see 14 also Woods, 525 F.3d at 890. Whether petitioner should be allowed to amend his petition in 15 case CIV S-02-0007 JAM DAD P is a question properly left to the assigned judge in that earlier 16 filed case. 17 Based on the foregoing, the undersigned recommends that: 18 1. 19 in petitioner’s earlier filed case, CIV S-02-0007 JAM DAD P; 20 21 The Clerk of the Court be directed to refile petitioner’s petition (Doc. 1) 2. The Clerk of the Court be further directed to refile petitioner’s other pending motions (Docs. 12, 13, 14) in the same case; and 22 3. This action be closed. 23 These findings and recommendations are submitted to the United States District 24 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 25 after being served with these findings and recommendations, any party may file written 26 /// 2 1 objections with the court. Responses to objections shall be filed within 14 days after service of 2 objections. Failure to file objections within the specified time may waive the right to appeal. 3 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 4 5 6 7 8 DATED: January 18, 2011 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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