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McNeal v. Howell

United States District Court, D. Nevada

October 30, 2019

Marcus Sharif McNeal, Petitioner
v.
Jerry Howell, et al., Respondents.

          ORDER TRANSFERRING PETITION INTO CASE NUMBER 2:16-CV-01618-JAD-EJY AND DISMISSING THIS ACTION [ECF NO. 9]

          Jennifer A. Dorsey U.S. District Judge.

         This habeas corpus action was initiated on April 17, 2019, by Marcus Sharif McNeal, a prisoner at Nevada's Southern Desert Correctional Center. On that date, McNeal filed a Petition for Writ of Habeas Corpus[1] and an Application to Proceed in Forma Pauperis.[2] On April 23, 2019, I granted McNeal in forma pauperis status and ordered his petition filed, but I summarily dismissed this action because McNeal already had another habeas action pending before me in which he challenges the same 2013 judgment of conviction: Case Number 2:16-cv-01618-JAD-EJY (the 2016 petition).[3] I instructed McNeal that he needed to assert any challenge to his 2013 convictions in that already pending 2016 case.[4]

         McNeal appealed, [5] and the Court of Appeals vacated the judgment and remanded this case. It reasoned that I should not have dismissed the 2019 petition as duplicative but instead treated the 2019 petition “as a motion to amend the 2016 petition. . . .”[6] So, the appellate court instructed me:

to transfer the 2019 petition to D.C. No. 2:16-cv-01618-JAD-GWF, [7] and to docket and consider it as a motion to amend the 2016 petition with the benefit of its original filing date (April 17, 2019).[8]

         The appellate court did not dictate how I should rule on that motion, instead explaining that:

The district court has the discretion to decide whether the motion to amend should be granted. Id. We express no opinion as to the merit of that motion or appellant's claims.[9]

         Therefore, in compliance with the Court of Appeals' order, I direct the Clerk of the Court to FILE a copy of the petition in this 2019 action[10] in Case Number 2:16-cv-01618-JAD-EJY, and docket and treat it as a motion for leave to amend McNeal's petition in that 2016 case with the benefit of its original filing date (April 17, 2019), and I will order this 2019 case dismissed without prejudice.

         IT IS THEREFORE ORDERED that the Clerk of the Court is directed to FILE a copy of the petition in this 2019 action[11] in Case Number 2:16-cv-01618-JAD-EJY and docket and treat it as a motion for leave to amend McNeal's petition in that 2016 case with the benefit of its original April 17, 2019, filing date.

         IT IS FURTHER ORDERED that this action is DISMISSED WITHOUT PREJUDICE.

         IT IS FURTHER ORDERED that the petitioner's motion for appointment of counsel [ECF No. 9] in this case is DENIED as moot. The same request is also pending in the 2016 case and will be decided there.

         IT IS FURTHER ORDERED that the petitioner is denied a certificate of appealability because reasonable jurists would not find this order to be debatable.

         IT IS FURTHER ORDERED that the Clerk of the Court is directed to ENTER JUDGMENT accordingly and CLOSE THIS CASE.

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