Earnest Harris v. Robert Horel

FILED
NOT FOR PUBLICATION APR 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EARNEST S. HARRIS, No. 08-16571
Petitioner - Appellant, D.C. No. 2:07-CV-00939-LKK
v.
MEMORANDUM *
ROBERT A. HOREL, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, District Judge, Presiding
Submitted April 5, 2010 **
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
California state prisoner Earnest S. Harris appeals pro se from the district
court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have
jurisdiction pursuant to 28 U.S.C. § 2253, and we vacate and remand.
Harris contends that the instant habeas petition should not have been
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
dismissed as successive. Because the instant pro se habeas petition was filed
before adjudication of Harris’ earlier petition was complete, we vacate the district
court’s order dismissing the instant petition as successive, and remand with
instructions to construe the instant petition as a motion to amend the earlier petition
then pending in the district court. See Woods v. Carey, 525 F.3d 886, 888-890 (9th
Cir. 2008).
VACATED and REMANDED.
2 08-16571