Torres v. Kernan

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARIO TORRES, Case No. 20-cv-03159-PJH

8 Plaintiff, ORDER REOPENING CASE v. 9

10 SCOTT KERNAN, Defendant. 11

12 13 This is a habeas corpus case filed pro se by a former state prisoner pursuant to 28 14 U.S.C. § 2254. On February 25, 2022, the court denied the petition on the merits, closed 15 the case and issued a judgment. Also, on February 25, 2022, respondent filed a motion 16 to relate a different case filed by petitioner in 2021, Torres v. Kernan, 21-cv-2406 YGR, to 17 the instant case. Torres v. Kernan, 21-cv-2406 YGR, involves claims from the same 18 underlying conviction as the instant case. The Ninth Circuit has held that where a second 19 petition is filed by a pro se petitioner before the adjudication of a prior petition is 20 complete, the new petition should be construed as a motion to amend the pending 21 petition. Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). In a separate order, the 22 court will relate these cases. 23 For the foregoing reasons: 24 1. This case is REOPENED and the judgment (Docket No. 20) is VACATED. 25 2. The petition (Docket No. 1 in Torres v. Kernan, 21-cv-2406 YGR) shall be 26 DOCKETED in this case and construed as an amended petition. In a separate order, 27 Torres v. Kernan, 21-cv-2406 YGR, will be closed so all filings shall be filed in this case. 1 3. Respondent shall file a response to the claims in the amended petition as 2 outlined in the Order to Show Cause in Torres v. Kernan, 21-cv-2406 YGR. 3 IT IS SO ORDERED. 4 Dated: March 1, 2022 5 6 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27