ORDER REQUIRING PETITIONER TO ELECT TO PROCEED WITH THE FIRST AMENDED PETITION OR FILE A SECOND AMENDED PETITION

THIRTY (30) DAY DEADLINE

ORDER VACATING ORDER DIRECTING RESPONDENT TO FILE A RESPONSE

MICHAEL J. SENG, Magistrate Judge.

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

On February 1, 2016, Petitioner filed a petition for writ of habeas corpus with this Court. (ECF No. 1.) The Court reviewed the petition and, on February 8, 2016, directed Respondent to file a response to the petition within sixty (60) days. (ECF No. 6.)

On March 3, 2016, Petitioner filed a second petition for writ of habeas corpus in the Central District of California. On March 15, 2016, that case was transferred to this district and opened as a new petition for writ of habeas corpus. (See E.D.Cal. Case No. 1:16-cv-00175 MJS HC, ECF Nos. 3-4.) The Court construed the new petition as a motion to amend and, on March 23, 2016, closed the later filed action. See Woods v. Carey, 525 F.3d 886 (9th Cir. 2008).

It remains unclear whether Petitioner desires to proceed on the claims presented in the later filed action. Accordingly, the Court hereby ORDERS Petitioner to advise the Court within 30 days as to whether he wants to proceed with the more recently filed petition or to file a Second Amended Petition.

Petitioner is forewarned that Rule 2 of the "Rules Governing Section 2254 Cases" provides that the petition" . . . must specify all the grounds for relief available to the petitioner; state the facts supporting each ground; state the relief requested . . ." Rule 2 of the Rules Governing 2254 Cases. Rule 2 further provides that the petition "must substantially follow either the form appended to these rules or a form prescribed by a local district-court rule. The clerk must make forms available to petitioners without charge." Id. at 2(c).

In addition, Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 2255 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990).

Petitioner is advised that an amended petition supercedes the original petition, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be "complete in itself without reference to the prior or superceded pleading." Local Rule 220. Accordingly, Petitioner's last filed amended petition must contain all the claims Petitioner wishes to present before the Court. Plaintiff is warned that "[a]ll causes of action alleged in an original complaint which are not alleged in an amended complaint are waived." King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)). The Court will grant Petitioner leave to determine the pleadings and exhibits he wishes to include in the instant petition. Accordingly, it is HEREBY ORDERED that:

1. Petitioner is GRANTED thirty (30) days from the date of service of this Order to EITHER: 1) provide notice to the Court that he is electing to proceed with the First Amended Petition (i.e. the petition originally filed in the Central District of California); or 2) submit a SECOND AMENDED PETITION. The amended petition should be clearly and boldly titled "SECOND AMENDED PETITION," contain the appropriate case number, and be an original signed under penalty of perjury;

2. The Clerk of Court is DIRECTED to send Petitioner a blank form petition for petitioners filing pursuant to 28 U.S.C. § 2254; and,

3. Petitioner is forewarned that his failure to comply with this order may result in a Recommendation that the petition be dismissed pursuant to Local Rule 110; and

4. The order directing Respondent to file a response to the petition is hereby WITHDRAWN. (Doc. 6.) Upon determining which petition is the operative petition in this case, the Court will screen the petition, and direct Respondent to file a response, if necessary.

IT IS SO ORDERED.

PETITION UNDER 28 USC § 2254 FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY

(If petitioner is attacking a judgment which imposed a sentence to be served in the future, petitioner must fill in the name of the state where the judgment was entered. If petitioner has a sentence to be served in the future under a federal judgment which he wishes to attack, he should file a motion under 28 U.S.C. § 2255, in the federal court which entered the judgment.)

PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY

Instructions-Read Carefully

(1) This petition must be legibly handwritten or typewritten, and signed by the petitioner under penalty of perjury. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury. All questions must be answered concisely in the proper space on the form.

(2) If you have more than 4 grounds for relief, you may attach pages with the remaining grounds; however, the format of the attached pages must be the same as the petition and you must provide only a brief statement of facts. No citation to legal authority is required. A brief or memorandum in support of the petition may also be attached; however, the form petition must be complete in itself and may not simply refer to the attachments.

(3) Upon receipt of a fee of $5 your petition will be filed if it is in proper order.

(4) If you do not have the necessary funds for transcripts, counsel, appeal and other costs connected with a petition of this type, you may request permission to proceed in forma pauperis, in which event you must execute form AO-240 or other form required by the court, setting forth information establishing your inability to pay the costs. If you wish to proceed in forma pauperis, you must have an authorized officer at the penal institution complete the certificate as to the amount of money and securities on deposit to your credit in any account in the institution.

(5) Only judgments entered by one court may be challenged in a single petition. If you seek to challenge judgments entered by different courts either in the same state of in different states, you must file separate petitions as to each court.

(6) You must include all grounds for relief and all facts supporting such grounds for relief in the petition you file seeking relief from any judgment of conviction.

(7) When the petition is fully completed, the original and at least two copies must be mailed to the Clerk of the United States District Court whose address is

(8) Petitions which do not conform to these instructions will be returned with a notation as to the deficiency.