Dunsmore v. Burton

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

DARRYL DUNSMORE, Case No.: 3:21-cv-02125-CAB-RBB Petitioner,

ORDER DIRECTING CLERK TO v. FILE AMENDED PETITION IN THIS CASE [ECF No. 5] AS A GENA JONES, et al.1,

MOTION TO AMEND PETITION IN Respondents. CASE No. 3:21-cv-02025-JO-KSC On December 1, 2021, Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 seeking to challenge his conviction in San Diego Superior Court case no. SCS21653 in this Court which was given case no. 3:21-cv-02025-JO-KSC. (See Dunsmore v. Burton, et al., 3:21-cv-02025-JO-KSC (S.D. Cal. Dec. 1, 2021) [ECF No. 1].) On December 21, 2021, Petitioner filed a second petition

The Court takes judicial notice of the fact that Robert Burton is no longer the Warden at California Health Care Facility where Petitioner is housed. See Romero v. Securus Technologies, Inc., 216 F. Supp. 3d 1078, 1085 fn. 1 (“Under [Federal Rule of Evidence 201], the court can take judicial notice of ‘public records and government documents available from reliable sources on the Internet, such as websites run by governmental agencies.’”) The Court therefore sua sponte substitutes Gena Jones, Acting Warden at the California Health Care Facility, as Respondent in place of “Robert Burton.” See for writ of habeas corpus pursuant to 28 U.S.C. § 2254 seeking to challenge his conviction in San Diego Superior Court case no. SCS21653 in this Court which was given this case number, 3:21-cv-02125-CAB-RBB. (See ECF No. 1.)

The Court dismissed the action in this case (3:21-cv-02125-CAB-RBB) on February 14, 2022 because Petitioner had failed to either pay the $5.00 filing fee or move to proceed in forma pauperis. He was given until April 11, 2022 to either pay the $5.00 filing fee or submit adequate proof of his inability to pay the fee. (ECF No. 2.)

On February 15, 2022, the Court dismissed the petition in S.D. Cal. case no. 3:21- cv-02025-J0-KSC because Petitioner had failed to either pay the $5.00 filing fee or move to proceed in forma pauperis and because Petitioner had failed to allege exhaustion as to all claims in the petition. (See ECF No. 4 in S.D. Cal. case no. 3:21-cv-02025-JO-KSC.) Petitioner was told he had until March 18, 2022 to either pay the $5.00 filing fee or submit adequate proof of his inability to pay the fee and to choose one of the options outlined by the Court in its Order. (Id.)

On February 28, 2022, Petitioner filed a motion for leave to proceed in forma pauperis in this case (3:21-cv-02125-CAB-RBB). (See ECF No. 3.) On that date he also filed an Amended Petition and a motion for leave to proceed in forma pauperis in S.D. Cal. case no. 3:21-cv-02025-JO-KSC. (See ECF Nos. 5–6 in S.D. Cal. case no. 3:21-cv-02025- JO-KSC.)

On March 4, 2022, the Court granted Petitioner’s motion to proceed in forma pauperis in this case (3:21-cv-02125-CAB-RBB) and dismissed the case without prejudice because Petitioner had failed to state a cognizable federal habeas corpus claim and because he had failed to allege exhaustion as to all claims in the petition. (See ECF No. 4.) Petitioner was given until May 3, 2022 to choose one of the options outlined in the Court’s Order. (Id.)

On March 16, 2022, the Court denied Petitioner’s motion to proceed in forma pauperis in S.D. Cal. case no. 3:21-cv-02025-JO-KSC because Petitioner had failed to provide the Court with adequate proof of his inability to pay the filing fee. (See ECF No. 7 S.D. Cal. case no, 3:21-cv-02025-JO-KSC.) Petitioner was given until April 19, 2022 to /either pay the $5.00 filing fee or submit a trust account statement establishing his inability to pay the fee. Id.)

On March 24, 2022, Petitioner filed an Amended Petition in this case (3:21-cv- 02125-CAB-RBB). (See ECF No. 5.) He also filed an Amended Petition in case no. 3:21- cv-02025-JO-KSC. (See ECF No. 8 in S.D. Cal. case no. 3:21-cv-02025-JO-KSC.)

On April 15, 2022, Petitioner filed a document entitled “Motion for Continuance and Order Directing CDCR California Healthcare Facility to Perform its Administrative Duties to Complete Certified Trust Account Statement and Prison Certificate and Forward to the Above Court” in case no. 3:21-cv-02025-JO-KSC. (See ECF No. 9 in S.D. Cal. case no. 3:21-cv-02025-JO-KSC.) Then, on April 25, 2022, he filed a motion to proceed in forma pauperis which included a trust account statement in case no. 3:21-cv-02025-JO-KSC. (See No. 10 in S.D. Cal. case no. 3:21-cv-02025-JO-KSC.)

In Woods v. Carey, 525 F.3d 886 (9th Cir 2008), the Ninth Circuit stated that when a pro se petitioner has a 28 U.S.C. § 2254 petition pending in a district court and files a [new 28 U.S.C. § 2254 petition challenging the same conviction, “the district court should . . . construe [a] pro se habeas petition as a motion to amend his pending habeas petition.” Ud. at 890.) Accordingly, the Clerk of Court is DIRECTED to file the Amended Petition in this case (ECF No. 5) as a motion to amend the petition in case no. 3:21-cv- 02025-JO-KSC. The Clerk of Court shall close this case.

IT IS SO ORDERED.

Dated: May 2, 2022 € □

Hon. Cathy Ann Bencivengo United States District Judge