1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOEL VALERA, Case No. 1:22-cv-01522-HBK (HC) 12 Petitioner, ORDER CONSTRUING PETITION AS MOTION TO AMEND OR AMENDED 13 v. PETITION IN CASE NO. 1:22-cv-00852- ADA-CDB 14 THE PEOPLE OF THE STATE OF CALIFORNIA, CDCR, ORDER DIRECTING CLERK OF COURT TO 15 RE-FILE INSTANT PETITION AS MOTION Respondents. TO AMEND OR AMENDED PETITION IN 16 CASE NO. 1:22-cv-00852-ADA-CDB

17 ORDER DIRECTING CLERK OF COURT TO CLOSE THIS CASE 18 19 Petitioner Joel Valera, a state prisoner proceeding pro se, filed this instant petition for writ 20 of habeas corpus under

on November 23, 2022. (Doc. No. 1). The Court takes 21 judicial notice of its own files which reveal that Petitioner has a previously filed federal petition 22 in this Court challenging the same conviction at case number 1:22-cv-00852-ADA-CDB. The 23 Court construes the filing as a motion to amend the petition filed in Petitioner’s earlier case and 24 orders this matter closed. 25 In Woods v. Carey, the Ninth Circuit held that, under certain circumstances, if a pro se 26 petitioner files a habeas petition during the pendency of a previous petition, the district court 27 should construe the second petition as a motion to amend the previous petition.

, 28 1 | 889-90 (9th Cir. 2008). Hence, Woods appears to require a district court to construe a “second or 2 || successive” petition filed while an earlier petition is still pending in the district court as a motion 3 | to amend the earlier petition. Because Petitioner has a pending federal habeas petition in case 4 | number 1:22-cv-00852-ADA-CDB, which challenges the same conviction as in this case, the 5 | Court must construe this Petition as a motion to amend the earlier-filed petition. See

at 889- 6 | 90. Further, a review of the docket in case number 1:22-cv-00852-ADA-CDB reveals that, on 7 | November 2, 2022, the Court directed Petitioner to file an amended petition in his earlier case and 8 | afforded Petitioner thirty (30) days to file his amended petition. See Case No. 1:22-cv-00852- 9 | ADA-CDB, Order dated November 2, 2022 (Doc. No. 9). Thus, Petitioner may have intended the 10 | instant petition filed in this action to be his amended petition in his previously filed action. 11 Accordingly, it is ORDERED: 12 1. The Court construes the Petition (Doc. No. 1) as a motion to amend the petition or as 13 an amended petition in case number 1:22-cv-00852-ADA-CDB. 14 2. The Clerk of Court is DIRECTED to contact United States Magistrate Judge Baker’s 15 chambers and docket the petition in this case as either a motion to amend or as an 16 amended petition in case number 1:22-cv-00852-ADA-CDB as directed by chambers. 17 3. The Clerk of Court is directed to close this case. 18 | Dated: _ December 8, 2022 Mihaw. fares Zackte 20 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE

22 23 24 25 26 27 28