(hc)wright v. Muniz

ORDER by Judge Haywood S. Gilliam, Jr. DENYING {{19}} MOTION TO VACATE JUDGMENT.

Northern District of California, cand-4:2015-cv-01600

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RAYMOND WRIGHT, Case No. 15-cv-01600-HSG (PR) Plaintiff, 8 ORDER DENYING MOTION TO v. VACATE JUDGMENT 9 10 W.L. MUNIZ, Re: Dkt. No. 19 Defendant. 11 12 Northern District of California United States District Court 13 On March 26, 2015, petitioner, a former state prisoner, filed a pro se habeas petition 14 challenging the California Department of Corrections and Rehabilitation's calculation of his 15 release date. The petition was originally filed in the United States District Court for the Eastern 16 District of California, using that court's form for habeas petitions brought pursuant to 28 U.S.C. 17 § 2254. The Eastern District thereafter transferred the petition to this District on the ground that, 18 because petitioner was challenging the execution of his sentence and was incarcerated in this 19 District, venue over the petition lies in this District. 20 On August 10, 2015, the case was dismissed for failure to exhaust state court remedies. 21 Petitioner was advised that if chose to re-file after exhausting state court remedies, he could not re- 22 file his petition as an amended petition in this action but must instead file a new petition and a new 23 case number would be assigned it. 24 On December 1, 2015, petitioner re-filed the same petition in this Court, using the same 25 Eastern District form and with the case number crossed out. With the petition, he filed a letter 26 reporting that state court remedies had been exhausted on November 10, 2015 when the California 27 Supreme Court denied his state habeas petition. The re-filed federal petition and letter were 28 opened as a new action and given a new case number, C 15-5506 HSG (PR). The Clerk notified 1 petitioner that he had not filed a petition using this Court's form for Section 2254 petitions. 2 Petitioner was also advised that he needed to pay the $5.00 filing fee or file an application to 3 proceed in forma pauperis ("IFP"). The Clerk also mailed to petitioner the Court's petition and 4 IFP forms and instructions for completing the forms. 5 Petitioner then filed a motion to vacate judgment in this action. It appears that he is under 6 the impression that his re-filed petition was rejected. This is incorrect. Accordingly, the instant 7 motion is DENIED. There is no need to vacate judgment in this action. Petitioner may proceed 8 with his petition in C 15-5506 HSG (PR) after re-submitting the petition on the form he was 9 provided. The petition should include civil case number C 15-5506 HSG (PR). 10 Finally, the Court notes that although petitioner is no longer in custody, the Clerk sent him 11 a prisoner IFP application. Should petitioner be granted leave to proceed IFP based on the 12 information provided in the prisoner IFP application, the Court will be unable to collect the funds Northern District of California United States District Court 13 from petitioner's prisoner trust account as required under 28 U.S.C. § 1915(b). Therefore, the 14 Clerk is directed to provide petitioner with a non-prisoner IFP application. 15 The Court notes that petitioner's form petition and IFP application in C 15-5506 HSG (PR) 16 are currently due on or before January 8, 2016. In the interests of justice, the Court sua sponte 17 extends petitioner's deadline to January 22, 2016. 18 The Clerk shall file a copy of this order in C 15-5506 HSG (PR). 19 This order terminates Docket No. 19. 20 IT IS SO ORDERED. 21 Dated: 12/16/2015 22 23 ________________________ HAYWOOD S. GILLIAM, JR. 24 United States District Judge 25 26 27 28 2