Markay v. Brown

Ninth Circuit

Markay v. Brown

118 F. App'x 293

CourtCourt of Appeals for the Ninth Circuit

DecidedJanuary 12, 2005

DocketNo. 03-16055; D.C. No. CV-02-00152-GEB/GGH

StatusPublished

Cited by1 cases

This text of 118 F. App'x 293 (Markay v. Brown) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Markay v. Brown, 118 F. App'x 293 (9th Cir. 2005).

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Opinion

MEMORANDUM

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The petitioner asserts that his second habeas petition does not qualify as successive because he filed it before the district court had ruled on his earlier habeas petition. The record demonstrates, and the respondent concedes, that the petitioner is correct. The district court should have treated the second petition as a motion to amend the pending petition. 28 U.S.C. § 2244(b); Ching v. United States, 298 F.3d 174, 176-179 (2d Cir.2002); see also Fetterly v. Paskett, 997 F.2d 1295, 1301-02 (9th Cir.1993). The district court’s order dismissing the second petition is VACATED and the matter is REMANDED with instructions that the district court construe the petitioner’s second petition as a motion to amend his earlier petition.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

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MEMORANDUM

**

The petitioner asserts that his second habeas petition does not qualify as successive because he filed it before the district court had ruled on his earlier habeas petition. The record demonstrates, and the respondent concedes, that the petitioner is correct. The district court should have treated the second petition as a motion to amend the pending petition. 28 U.S.C. § 2244(b); Ching v. United States, 298 F.3d 174, 176-179 (2d Cir.2002); see also Fetterly v. Paskett, 997 F.2d 1295, 1301-02 (9th Cir.1993). The district court’s order dismissing the second petition is VACATED and the matter is REMANDED with instructions that the district court construe the petitioner’s second petition as a motion to amend his earlier petition.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

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Bluebook (online)

118 F. App'x 293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/markay-v-brown-ca9-2005.

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