(HC) Deegan v. Spearman ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SYDNEY DEEGAN, No. 2:19-cv-01356 GGH P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 M. SPEARMAN, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. 19 In his current petition, petitioner challenges his 2015 conviction in the Placer County 20 Superior Court. However, a review of the court’s records indicates that petitioner has an active 21 habeas petition currently pending in case Deegan v. High Desert State Prison, 2:17-cv-00604- 22 MCE-AC.1 The Ninth Circuit has directed the district court to construe a “pro se habeas petition 23 as a motion to amend his pending habeas petition” where a new pro se habeas petition has been 24 filed before the complete adjudication of a prior petition rather than as a successive petition. 25 Woods v. Carey, 525 F.3d 886, 890 (9th Cir. 2008). “The district court then has the discretion to 26 decide whether the motion to amend should be granted. Id. (citing Fed. R. Civ. P. 15(a)(2)). 27 1 The court may take judicial notice of court records in other cases. United States v. Howard, 381 28 F.3d 873, 876 n.1 (9th Cir. 2004) 1 Therefore, the undersigned will construe petitioner’s pro se petition filed in this case as a motion 2 to amend his pending habeas petition in case 2:17-cv-00604-MCE-AC. 3 Based on the foregoing, IT IS HEREBY ORDERED that the Clerk of the Court is directed 4 to randomly assign a district judge to this action. 5 Further, IT IS HEREBY RECOMMENDED that: 6 1. The Clerk of the Court be directed to refile petitioner’s petition for writ of habeas 7 corpus (ECF No. 1) in petitioner’s currently pending case, 2:17-cv-00604-MCE-AC; and 8 2. This action be closed. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 11 after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 14 objections shall be filed and served within fourteen days after service of the objections. The 15 parties are advised that failure to file objections within the specified time may waive the right to 16 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 Dated: August 6, 2019 /s/ Gregory G. Hollows 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28