Royal v. Madden ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARLIN LATTEREAL ROYAL, Case No.: 3:21-cv-01604-BTM-AHG 12 Petitioner, ORDER DIRECTING CLERK TO 13 v. FILE PETITION IN THIS CASE AS A MOTION TO AMEND PETITION 14 RAYMOND MADDEN, IN CASE No. 3:21-cv-00834-WQH- 15 Respondent. WVG 16 17 On August 16, 2019, Petitioner, a state prisoner proceeding pro se, filed a petition 18 for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court 19 for the Eastern District of California. The case was transferred to this Court on April 29, 20 2021, and was given case no. 3:21-cv-00834-WQH-WVG. (See Royal v. Madden, 3:21- 21 cv-00834-WQH-WVG (S.D. Cal. Apr. 26, 2021) [ECF No. 1].) In case no. 3:21-cv-00834- 22 WQH-WVG, Royal challenges his conviction in San Diego Superior Court case no 23 SCE361596. (Id.) The Court informed Royal in an Order dated May 13, 2021, that he had 24 filed a mixed petition and provided Royal with four options to choose from in order to 25 proceed with his case. (See Order dated May 13, 2021 in case no. 3:21-cv-00834-WQH- 26 WVG [ECF No. 6].) On August 25, 2021, Royal filed a response to the Court’s May 13, 27 2021 Order in which he indicated he wished to file an amended petition which contained 28 all his claims, including his newly exhausted ones. (ECF No. 15.) 1 On September 13, 2021, Royal filed a second habeas corpus petition pursuant to 28 2 || U.S.C. § 2254 in this Court seeking to challenge the same conviction as he does in case no. 3 || 3:21-cv-00834-WQH-WVG. That petition was given this case no., 3:21-cv-01604-BTM- 4 || AHG. (See Royal v. Madden, 3:21-cv-01604-BTM-AHG (S.D. Cal. Sept. 13, 2021)[ ECF 5 1].) 6 In Woods v. Carey, 525 F.3d 886 (9th Cir 2008), the Ninth Circuit stated that when 7 ||a pro se petitioner has a 28 U.S.C. § 2254 petition pending in a district court and files a 8 28 U.S.C. § 2254 petition challenging the same conviction, “the district court 9 ||should . . . construe [a] pro se habeas petition as a motion to amend his pending habeas 10 || petition.” Id. at 890. Accordingly, the Clerk of Court is DIRECTED to file the petition in 11 case (ECF No. 1) as a motion to amend the petition in case no. 3:21-cv-00834-WQH- 12 || WVG and close this case, 3:21-cv-01604-BTM-AHG. 13 IT IS SO ORDERED. 14 || Dated: September 22, 2021 15 ang Te Meche Honorable Barry Ted Moskov 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28