Free Order Dismissing Case - District Court of California - California

Case 3:07-cv-02159-DMS-RBB

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Filed 11/15/2007

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respondent. JAMES TILTON, Secretary, v. WILLIAM J. AUSTIN, Petitioner, Civil No. ORDER: (1) DIRECTING CLERK TO FILE A COPY OF THE PETITION IN THIS MATTER AS AN ORIGINAL APPLICATION TO FILE A SUPPLEMENTAL PETITION IN 07cv2159-DMS (RBB) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

SO. DIST. CA. CIVIL CASE NO. 05cv1303-LAB (CAB); AND,
(2) DISMISSING CASE WITHOUT PREJUDICE

Petitioner, a state prisoner proceeding pro se, has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner claims his federal due process rights were violated by the manner in which his sentence was calculated. (Pet. at 6.) Petitioner is currently proceeding with a Petition for a Writ of Habeas Corpus challenging the same conviction and sentence which is the subject of the instant Petition. (See Petition filed 6/27/05 [Doc. No. 1] in SO. DIST. CA. CIVIL CASE NO. 05cv1303-LAB (CAB).) On June 22, 2007, the assigned Magistrate Judge in that case filed a Report and Recommendation ("R&R") which recommended denying the Petition on the merits of the claims presented. (See R&R filed 6/22/07 [Doc. No. 50] in SO. DIST. CA. CIVIL CASE NO. 05cv1303-LAB (CAB).) Petitioner filed Objections to the

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07cv2159

Case 3:07-cv-02159-DMS-RBB

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Filed 11/15/2007

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R&R on July 27, 2007, and the matter is currently pending before the assigned District Judge. (See Objections filed 7/27/07 [Doc. No. 52] in SO. DIST. CA. CIVIL CASE NO. 05cv1303-LAB (CAB).) Because Petitioner is attempting to present a new claim which arises from and is directly related to the conviction and sentence which he is currently attacking in SO. DIST. CA. CIVIL CASE NO. 05cv1303-LAB (CAB), the instant Petition appears to be an attempt by Petitioner to file a supplemental petition in SO. DIST. CA. CIVIL CASE NO. 05cv1303-LAB (CAB). Accordingly, the Clerk of the Court is DIRECTED to file a copy of the original Petition in the instant case as an Application to File a Supplemental Petition in SO. DIST. CA. CIVIL CASE NO. 05cv1303-LAB (CAB). The Court DISMISSES the instant action without prejudice to Petitioner to proceed with his claims in SO. DIST. CA. CIVIL CASE NO. 05cv1303-LAB (CAB). IT IS SO ORDERED.

DATED: November 15, 2007

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CC: PETITIONER IN PRO SE UNITED STATES MAGISTRATE JUDGE RUBEN B. BROOKS UNITED STATES MAGISTRATE JUDGE CATHY ANN BENCIVENGO HON. DANA M. SABRAW United States District Judge

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