(HC) Belyew v. Pallares

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

LISA MARIE BELYEW, No. 2:20-cv-2503 KJN P

Petitioner, v. ORDER

MIKE PALLARES,

Respondent.

Petitioner is a state prisoner, proceeding without counsel, seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The instant petition challenges petitioner’s 2018 conviction in the Colusa County Superior Court. (ECF No. 1.) Court records reflect that petitioner is presently challenging the same conviction in an earlier-filed action, which remains pending: Belyew v. People of the State of California, 2:19-cv-0294 AC (E.D. Cal.). It is established that if a new petition is filed when a previous habeas petition is still pending before the district court without a decision having been rendered, then the new petition should be construed as a motion to amend the pending petition. Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). Therefore, the petition filed in the instant action should be construed as a motion to amend the initial petition and filed in 2:19-cv-0294 AC. Woods, 525 F.3d at 888. //// ////

Accordingly, IT IS HEREBY ORDERED that:

1. The December 11, 2020 petition (ECF No. 1) should be construed as a motion to amend and filed in petitioner’s initial habeas action, Case No. 2:19-cv-0294 AC; and 2. The Clerk of the Court is directed to file the petition (ECF No. 1) as a motion to amend in Case No. 2:19-cv-0294 AC, and to terminate this action and all outstanding motions.

Dated: December 28, 2020

Frese Arn g KENDALL J. NE

UNITED STATES MAGISTRATE JUDGE fely2503.mta.tf