United States District Court, District of New Jersey
April 10, 2015
WILLIAM BARKSDALE, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ROBERT B. KUGLER, U.S.D.J.
Petitioner is a federal prisoner and is proceeding/to se with a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2555 that was docketed by the Clerk on April 7, 2015. Petitioner is also proceeding with a counseled § 2255 motion that is still pending in this Court. (See Civ. No. 15-1349.) Indeed, this Court ordered that an answer be filed to the counseled § 2255 motion on April 7, 2015. (See Id. Dkt. No. 5.)
Both of petitioner's § 2255 motions (counseled and/to se) attack the same conviction. Where a/ro se petitioner files a habeas petition while a prior habeas petition is still pending, a court will construe the newly filed habeas petition, not as a second or successive habeas petition, but as a motion to amend the previously filed and still pending habeas petition. See 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/to se habeas petition as a motion to amend pending habeas petition).
Petitioner’s counseled § 2255 motion in Civ. No. 15-1349 is still pending. Therefore, the Court will order the Clerk to re-docket the § 2255 motion in this case, as a motion to amend the § 2255 motion in that earlier counseled case. Accord Smith v. Hastings, No. 13-3750, 2013 WL 6054910, at *2 (D.N.J. Nov. 14, 2013) (ordering clerk to re-docket habeas petition as a motion to amend habeas petition in other pending habeas case that attacks the same conviction). The Clerk will also be ordered to close this case, Civ. No. 15-2399, as the § 2255 motion is now being re-docketed as a motion to amend petitioner’s pending § 2255 motion in Civ. No. 15-1349.
The Court will deny petitioner’s motion to amend his § 2255 motion in Civ. No. 15-1349. As previously noted, petitioner is proceeding through counsel, Alex Dexter Bowman, Esq., in his § 2255 motion in Civ. No. 15-1349. However, he has filed his motion to amend his § 2255 motion pro se. There is no right to “hybrid” representation, and this Court is not obligated to consider pro se filings made by represented litigants. See Pagliaccetti v. Kerestes, 948 F.Supp.2d 452, 457 (E.D. Pa. 2013) (citing McKaskle v. Wiggins, 465 U.S. 168, 183 (1984); United States v. D’Amario, 328 F. App’x 763, 764 (3d Cir. 2009) (per curiam)). Mr. Bowman is still petitioner’s counsel of record in Civ. No. 15-1349. Therefore, the Court will deny petitioner’s pro se motion to amend his § 2255 motion at this time. An appropriate order will be entered.