Markay v. Brown

U.S. Courts of Appeals

Decided January 12, 2005

U.S. Courts of Appeals · decided 2005-01-12

Cited by 1 later decisions — most recently May 2008

1 federal appellate ·

Applies 28 U.S.C. § 2244 (Antiterrorism and Effective Death Penalty Act of 1996)

Relies on Fetterly v. Paskett · Hom Sui Ching v. United States

Good law ✅— No negative treatment on recordhow we know

Decided 2005-01-12

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¶1MEMORANDUM …

¶2The petitioner asserts that his second habeas petition does not qualify as successive because he filed it before the district court had ruled on his earlier habeas petition. The record demonstrates, and the respondent concedes, that the petitioner is correct. The district court should have treated the second petition as a motion to amend the pending petition. 28 U.S.C. § 2244(b); Ching v. United States, 298 F.3d 174, 176-179 (2d Cir.2002); see also Fetterly v. Paskett, 997 F.2d 1295, 1301-02 (9th Cir.1993). The district court’s order dismissing the second petition is VACATED and the matter is REMANDED with instructions that the district court construe the petitioner’s second petition as a motion to amend his earlier petition.

¶3 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.