Brandon Alexander Favor v. People of the State of California

Filing 3

ORDER DISMISSING PETITION AND DENYING A CERTIFICATE OF APPEALABILITY by Judge Jesus G. Bernal 1 . IT IS ORDERED THAT: 1. The Petition is dismissed without prejudice; 2. A Certificate of Appealability is denied. [See Order for details.] (san)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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BRANDON ALEXANDER FAVOR,

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Petitioner,

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v.

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PEOPLE OF THE STATE OF
CALIFORNIA,

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Respondent.

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NO. CV 14-6655-JGB (JEM)

ORDER DISMISSING PETITION AND
DENYING A CERTIFICATE OF
APPEALABILITY

INTRODUCTION

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On August 25, 2014, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28

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U.S.C. § 2254 in this Court (the “August 2014 Petition” or “Petition”) challenging his conviction in

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Los Angeles County Superior Court Case No. BA285265 on one count of first degree murder, two

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counts of attempted murder, and two counts of second degree robbery. For the reasons set forth

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below, the August 2014 Petition is dismissed without prejudice.

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DISCUSSION

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Petitioner already has pending in this Court a habeas petition pertaining to the same state

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court conviction, which was filed in the Southern District of California on May 30, 2014, and

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transferred to this Court in Case No. CV 14-4441-JGB (JEM) on June 4, 2014 (the “June 2014

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Petition”). See Brandon Favor-El v. Daniel Paramo, Warden, Case No. 14-4441-JGB (JEM). The

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June 2014 Petition and the August 2014 Petition both challenge Petitioner’s conviction and

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sentence in Los Angeles County Superior Court Case No. BA285265. “In cases in which a federal

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habeas petitioner already has pending a federal habeas petition pertaining to the same state court

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conviction in the same court, dismissal is appropriate because the maintenance of a duplicative

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action serves no legitimate purpose.” Armstrong v. Hedgpeth, 2008 WL 5111872 (C.D. Cal.

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2008); see also Heidinger v. Yates, 2007 WL 1711776 (N.D. Cal. 2007) (dismissing habeas

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petition because petitioner already had habeas petition pertaining to same state court conviction

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pending in same court); Smith v. Louisiana, 2006 WL 1985467 (E.D. La. 2006) (even if construed

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as habeas petition, filing challenging convictions should be dismissed as duplicative since

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petitioner already has pending in same court a habeas petition involving same convictions).

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The Court has construed the August 2014 Petition as a Motion to Amend the June 2014

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Petition; thus, to the extent Petitioner is entitled to any relief on the claims in the August 2014

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Petition, he can obtain that relief through the earlier-filed action. See Minute Order in Case No.

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14-4441-JGB (JEM), filed December 1, 2014 (citing Woods v. Carey, 525 F.3d 886, 889-90 (9th

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Cir. 2008) (if prior habeas petition still pending when subsequent habeas petition filed, court

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should construe subsequent petition as motion to amend prior petition)).

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maintenance of this duplicative action would serve no legitimate purpose, and it should be

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dismissed.

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CERTIFICATE OF APPEALABILITY

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Accordingly,

Pursuant to Rule 11 of the Rules Governing Section 2254 cases, the Court “must issue or
deny a certificate of appealability when it enters a final order adverse to the applicant.”

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The Court has reviewed Petitioner’s contentions and is fully apprised of the relevant facts

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and law. For the aforementioned reasons, the Court concludes that Petitioner has not made a

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substantial showing of the denial of a constitutional right, as is required to support the issuance

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of a certificate of appealability. See 28 U.S.C. § 2253(c)(2). Accordingly, the certificate of

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appealability should be denied.

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ORDER

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Based on the foregoing, IT IS ORDERED THAT:

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1. The Petition is dismissed without prejudice;

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2. A Certificate of Appealability is denied.

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DATED: December 17, 2014

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JESUS G. BERNAL
UNITED STATES DISTRICT JUDGE

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