1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARLIN ROYAL, Case No.: 21-CV-834-WQH(WVG)

12 Petitioner, ORDER GRANTING MOTION TO 13 v. AMEND AND REOPENING CASE

14 RAYMOND MADDEN, Warden, [Doc. No. 16.] 15 Respondent. 16 17 On August 16, 2019, Petitioner, a state prisoner proceeding pro se, filed a petition 18 for writ of habeas corpus pursuant to

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 assigned case no. 21-CV-834-WQH(WVG). (See Royal v. Madden, 21-CV- 21 834-WQH(WVG) (S.D. Cal. Apr. 26, 2021) (Doc. No. 1).) In case no. 21-CV-834- 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. 21-CV-834-WQH(WVG) 26 (ECF No. 6).) On August 25, 2021, Royal filed a response to the Court’s May 13, 2021 27 Order in which he indicated he wished to file an amended petition which contained all his 28 claims, including his newly exhausted ones. (ECF No. 15.) 1 On September 13, 2021, instead of filing an amended petition in the instant case, 2 ||Royal filed a second habeas corpus petition pursuant to

seeking to 3 || challenge the same conviction as in case no. 21-CV-834-WQH(WVG). That petition was 4 ||assigned case no., 21-CV-1604-BTM(AHG). (See Royal v. Madden, 21-CV-1604- 5 || BTM(AHG) (S.D. Cal. Sept. 13, 2021) (Doc. No. 1).) 6 In Woods v. Carey,

(9th Cir 2008), the Ninth Circuit held that when a 7 || pro se petitioner has a

petition pending in a district court and files a new

petition challenging the same conviction, “the district court should. . . 9 || construe [a] pro se habeas petition as a motion to amend his pending habeas petition.” Jd. 10 890. 11 Accordingly, the Court construes the petition in case no. 21-CV-1604-BTM(AHG) 12 a motion to amend the petition in the instant case. So construed, the motion to amend is 13 || GRANTED given that it appears the second petition was intended to be the amended 14 || petition in the instant case. 15 The Clerk of Court is DIRECTED to refile the petition in case no. 21-CV-1604- 16 || BTM(AHG) as the Second Amended Petition in case no. 21-C V-834-WQH(WVG) and to 17 reopen the instant case. 18 IT IS SO ORDERED. 19 Dated: September 24, 2021 A Es 20 Hon. William V. Gallo 21 United States Magistrate Judge 22 23 24 25 26 27 28