Filed: Apr. 29, 2015
Latest Update: Apr. 29, 2015
Summary: MEMORANDUM AND ORDER ROBERT B. KUGLER , District Judge . Petitioner is a federal prisoner proceeding pro se with a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. 2255. In Civ. No. 14-6760, this Court administratively terminated that case as petitioner had failed to file his 2255 on the proper updated form. Petitioner was given leave to file his 2255 motion on the proper form. Petitioner was subsequently given until April 25, 2015 to file his 2255 motion
Summary: MEMORANDUM AND ORDER ROBERT B. KUGLER , District Judge . Petitioner is a federal prisoner proceeding pro se with a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. 2255. In Civ. No. 14-6760, this Court administratively terminated that case as petitioner had failed to file his 2255 on the proper updated form. Petitioner was given leave to file his 2255 motion on the proper form. Petitioner was subsequently given until April 25, 2015 to file his 2255 motion o..
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MEMORANDUM AND ORDER
ROBERT B. KUGLER, District Judge.
Petitioner is a federal prisoner proceeding pro se with a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. In Civ. No. 14-6760, this Court administratively terminated that case as petitioner had failed to file his § 2255 on the proper updated form. Petitioner was given leave to file his § 2255 motion on the proper form. Petitioner was subsequently given until April 25, 2015 to file his § 2255 motion on the proper form. (See Civ. No. 14-6760, Dkt. No. 10.)
On April 15, 2015, this Court received petitioner's motion to vacate, set aside or correct his sentence and the Clerk docketed it under a new civil docket number, Civ. No. 15-2686. Petitioner's motion in Civ. No. 15-2686 challenges the same judgment and sentence that petitioner is challenging in Civ. No. 14-6760. Thus, it appears clear to the Court that the motion in Civ. No. 15-2686 should be docketed as an amended § 2255 motion in Civ. No. 14-6760 based on the procedural history that only administratively terminated that case with leave to reopen. C.f. Ching v. United States, 298 F.3d 174, 177 (2d Cir. 2002) ("[W]hen a § 2255 motion is filed before adjudication of an initial § 2255 motion is complete, the district court should construe the second § 2255 motion as a motion to amend the pending § 2255 motion); see also Woods v. Carey, 525 F.3d 886, 890 (9th Cir. 2008) (finding that district court should have construed pro se habeas petition as a motion to amend pending habeas petition). Once the § 2255 motion is re-docketed as an amended § 2255 motion in Civ. No. 14-6760, the Court will proceed to screening the amended § 2255 motion pursuant to Rule 4 of the Rules Governing § 2255 cases.
Accordingly, IT IS this 29th day of April, 2015,
ORDERED that the Clerk shall re-docket petitioner's § 2255 motion (Dkt. No. 1.) in Civ. No. 15-2686 as an amended § 2255 motion in Civ. No. 14-6760; and it is further
ORDERED that the Clerk shall reopen Civ. No. 14-6760; and it is further
ORDERED that the Clerk shall mark Civ. No. 15-2686 as closed because petitioner's § 2255 motion in that case has been construed as an amended § 2255 motion in Civ. No. 14-6760 and will be docketed as such; and it is further
ORDERED that the Court will screen the amended § 2255 motion in Civ. No. 14-6760 in due course pursuant to Rule 4 of the Rules Governing § 2255 cases.
