(HC) Barton v. Peterson ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM BARTON, No. 2:22-cv-0616 KJN P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 JOSIE GASTELO, et al., 15 Respondents. 16 17 Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. 19 Examination of the in forma pauperis application reveals that petitioner is unable to afford 20 the costs of suit. Accordingly, the application to proceed in forma pauperis is granted. See 28 21 U.S.C. § 1915(a). 22 On April 14, 2022, the original petition, filed on a petition seeking relief under 28 U.S.C. 23 § 2241 was dismissed, and petitioner was granted leave to file an amended petition. On May 3, 24 2022, petitioner filed a petition under 28 U.S.C. § 2254. 25 The court’s own records reveal that on October 18, 2021, petitioner filed a petition for 26 writ of habeas corpus also challenging his San Joaquin County conviction. Barton v. Gastelo, No. 27 2:21-cv-1933 JDP (E.D. Cal.). It is established that if a new petition is filed when a previous 28 habeas petition is still pending before the district court without a decision having been rendered, 1 | then the new petition should be construed as a motion to amend the pending petition. Woods v. 2 | Carey, 525 F.3d 886, 888 (9th Cir. 2008). Because petitioner’s prior case remains pending, the 3 || Clerk of the Court is directed to file the May 3, 2022 petition in Case No. 2:21-cv-1933 JDP as an 4 || amended petition. 5 Due to the duplicative nature of the present action, the court recommends that this action 6 || be dismissed. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. Petitioner’s motion to proceed in forma pauperis is granted; and 9 2. The Clerk of the Court is directed to assign a district judge to this case; and shall file 10 || the May 3, 2022 petition (ECF No. 5) in Barton v. Gastelo, No. 2:21-cv-1933 JDP (E.D. Cal.), as 11 || an amended petition. 12 Further, IT IS RECOMMENDED that petitioner’s application for a writ of habeas corpus 13 || be dismissed without prejudice. See Fed. R. Civ. P. 41(b). 14 These findings and recommendations are submitted to the United States District Judge 15 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 16 || after being served with these findings and recommendations, plaintiff may file written objections 17 || with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 18 || and Recommendations.” Plaintiff is advised that failure to file objections within the specified 19 || time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 20 | (9th Cir. 1991). 21 || Dated: May 10, 2022 ” Aectl Aharon 23 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 24 fbart0616.23 25 26 27 28