(HC) Barton v. Gastelo ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM RAY BARTON, No. 2:19-CV-2322-DMC-P 12 Petitioner, 13 v. ORDER 14 JOSIE GASTELO, 15 Respondent. 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. Pending before the Court is respondent’s motion 19 (ECF No. 15) to vacate the March 6, 2020 order to respond to petitioner’s amended petition. 20 It appears that there are currently two active petitions before the Court pertaining 21 to the same underlying conviction of petitioner. In the first case, Barton v. San Joaquin, 2:19-cv- 22 00148-MCE-DMC (Barton I), petitioner initially filed his habeas petition on January 4, 2019, in 23 the Northern District1. The case was then transferred to this Court on September 25, 2019, and 24 respondent was ordered to file a response to petitioner’s second amended petition. As of this date, 25 the following motions are pending in Barton I: 26 1. ECF No. 27 Motion to Amend Petition by Petitioner. 27 2. ECF No. 28 Motion to Dismiss Petition by Respondent. 28 / / / MAS CLD MINIS AIR Ter PAY eV 1 In the present case, petitioner submitted a petition for writ of habeas corpus on 2 | November 18, 2019, ECF No. 1. On January 21, 2020, petitioner filed an amended petition, ECF 3 | No. 9. On March 6, 2020, the Court directed respondent to file a response to plaintiff's first 4 | amended petition, ECF No. 10. On May 6, 2020, respondent submitted this motion to vacate the 5 | March 6 order, ECF No. 15. Specifically, respondent requests that: (1) the order to respond to the 6 | petition in this case be vacated; (2) the petition in this case be construed as a motion to amend in 7 | Barton J; (3) a new briefing schedule be set in Barton I; and (4) this case be administratively 8 | closed as duplicative. See id. at pg. 1. 9 Petitioner appears aware of these duplicative cases and wishes to proceed on the 10 || petition he has submitted in this case. See ECF No. 37. Petitioner has also not submitted an 11 | opposition to respondent’s current motion. As such, there appears to be good cause for granting 12 | respondent’s motion. See e.g. Goodrum v. Busby, 824 F.3d 1188, 1194-95 (9th Cir. 2016). 13 | Pending motions and a briefing schedule in Barton I will be addressed by separate order issued in 14 | that case. 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. Respondent’s motion to vacate (ECF No. 15) is GRANTED; 17 2. The Court’s order (ECF No. 10) directing respondent to respond to the 18 | petition is VACATED; 19 3. The amended petition (ECF No. 9) in this case shall be construed as 20 || petitioner’s fourth amended petition in 2:19-cv-00148-MCE-DMC, filed as of January 21, 2020; 21 4. The Clerk of the Court is directed to administratively close the instant 22 | action as duplicative. 23 24 | Dated: June 4, 2020 Sx