Sarmiento v. Pfeiffer ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSE E. SARMIENTO, Case No.: 3:21-cv-01644-CAB-NLS 12 Petitioner, ORDER DIRECTING CLERK TO 13 v. FILE PETITION IN THIS CASE AS A MOTION TO AMEND PETITION 14 CHRISTIAN PFEIFFER, et al., IN CASE No. 3:20-cv-00930-WQH- 15 Respondents. AGS 16 17 On May 18, 2020, Petitioner, a state prisoner proceeding pro se, filed a petition for 18 writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court which was given case no. 19 3:20-cv-00930-WQH-AGS. (See Sarmiento v. Pfeiffer, et al., 3:20-cv-00930-WQH-AGS 20 (S.D. Cal. May 18, 2020) [ECF No. 1].) In case no. 3:20-cv-00930-WQH-AGS, Sarmiento 21 seeks to challenge his conviction in San Diego Superior Court case no SCN346521. (Id.) 22 The case was dismissed without prejudice on May 28, 2020 because Sarmiento had failed 23 to satisfy the filing fee requirement and had failed to alleges exhaustion of his state judicial 24 remedies. (See ECF No. 2 in case no. 3:20-cv-00930-WQH-AGS.) He was given until July 25 27, 2020, to either pay the $5.00 filing fee or file a Motion to Proceed in Forma Pauperis, 26 and file a First Amened Petition the alleged exhaustion. (Id.) 27 On July 16, 2020, Sarmiento filed a First Amended Petition and a Motion for Stay. 28 (ECF Nos. 3–4 in case no. 3:20-cv-00930-WQH-AGS.) On February 16, 2021, the stay 1 || was granted and the Court directed Sarmiento and Respondent to file joint status reports 2 ||every three months. (ECF No. 15 in case no. 3:20-cv-00930-WQH-AGS.) Sarmiento was 3 || also directed to file a motion requesting the stay be lifted “within 45 days of the state court’s 4 ||decision resolving [his] claims.” (/d.) Sarmiento filed status reports on March 9, June 7, 5 || August 2, and September 13, 2021. (ECF Nos. 17-18, 20-21 in case no. 3:20-cv-00930- 6 || WQH-AGS.)! 7 On September 16, 2021, Sarmiento filed a second habeas corpus petition pursuant 8 28 U.S.C. § 2254 in this Court seeking to challenge the same conviction as he does in 9 || case no. 3:20-cv-00930-WQH-AGS. That petition was given this case no., 3:21-cv-01644- 10 || CAB-NLS. (See Sarmiento vy. Pfeiffer, et al., 3:21-cv-01644-CAB-NLS (S.D. Cal. Sept. 11 |] 16, 2021)[ ECF No. 1].) 12 In Woods v. Carey, 525 F.3d 886 (9th Cir 2008), the Ninth Circuit stated that when 13 ||a pro se petitioner has a 28 U.S.C. § 2254 petition pending in a district court and files a 14 28 U.S.C. § 2254 petition challenging the same conviction, “the district court 15 ||should .. . construe [a] pro se habeas petition as a motion to amend his pending habeas 16 || petition.” Jd. at 890. Accordingly, the Clerk of Court is DIRECTED to file the petition in 17 || this case (ECF No. 1) as a motion to amend the petition in case no. 3:20-cv-00930-WQH- 18 || AGS. 19 IT IS SO ORDERED. 20 ||Dated: September 30, 2021 € ZL 21 Hon. Cathy Ann Bencivengo 22 United States District Judge 23 24 || 26 After Respondent failed to file the required status reports, an Order to Show Cause 27 || (“OSC”) was issued on September 15, 2021. (ECF Nos. 19, 23 in case no. 3:20-cv- 28 00930-WQH-AGS. The OSC was dismissed after Respondent filed a Response explaining the delay. (ECF Nos. 24-25 in case no. 3:20-cv-00930-WQH-AGS.)