Robertson v. Mariposa County Court

Filing 10

FINDINGS and RECOMMENDATIONS to Dismiss Petition for Writ of Habeas Corpus as Duplicative of Earlier Filed Petition; ORDER Directing Clerk of Court to Assign District Court Judge to the Present Matter signed by Magistrate Judge Michael J. Seng on 11/21/2014. Referred to Judge O'Neill; Objections to F&R due by 12/29/2014.(Flores, E)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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1:14-cv-01809 MJS HC
ROGER W. ROBERTSON,

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v.

FINDINGS AND RECOMMENDATION TO
Petitioner, DISMISS PETITION FOR WRIT OF
HABEAS CORPUS AS DUPLICATIVE OF
EARLIER FILED PETITION

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MARIPOSA COUNTY COURT,

ORDER DIRECTING CLERK OF COURT
TO ASSIGN DISTRICT COURT JUDGE TO
THE PRESENT MATTER

Respondent.

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

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On May 29, 2014, Petitioner filed a federal petition for writ of habeas corpus in

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this Court. The petition was assigned case number “1:14-cv-00924 AWI MJS HC,” and is

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currently pending before the Court. In that petition, Petitioner challenges his September

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9, 2010 conviction and alleges error in allowing impermissible prior conviction evidence,

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juror bias, and ineffective assistance of counsel.

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On July 10, 2014, Petitioner filed a second federal petition for writ of habeas

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corpus in this Court. This petition has been assigned case number “1:14-cv-01809 MJS

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HC.” The petition challenges the same 2010 conviction. (See Pet.)

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“After weighing the equities of the case, the district court may exercise its
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discretion to dismiss a duplicative later-filed action, to stay that action pending resolution

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of the previously filed action, to enjoin the parties from proceeding with it, or to

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consolidate both actions.” Adams v. California Dept. of Health Services, 487 F.3d 684,

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688 (9th Cir. 2007). “Plaintiffs generally have „no right to maintain two separate actions

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involving the same subject matter at the same time in the same court and against the

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same defendant.‟” Id. (quoting Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir. 1977) (en

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banc)).

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In assessing whether a second action is duplicative of the first, the court

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examines whether the causes of action and relief sought, as well as the parties or privies

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to the action, are the same. Adams, 487 F.3d at 689. First, the court must examine

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whether the causes of action in the two suits are identical pursuant to the transaction

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test, developed in the context of claim preclusion. Id. Second, the court determines

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whether the defendants are the same or in privity. Privity includes an array of

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relationships which fit under the title of “virtual representation.” Kourtis v. Cameron, 419

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F.3d 989, 996 (9th Cir. 2005). “The necessary elements of virtual representation are an

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identity of interests and adequate representation.” Adams, 487 F.3d at 691 (citing

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Kourtis, 419 F.3d at 996). “Additional features of a virtual representation relationship

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include a close relationship, substantial participation, and tactical maneuvering.” Id.

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A plaintiff is required to bring at one time all of the claims against a party or privies

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relating to the same transaction or event. Adams, 487 F.3d at 693. The court has

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discretion to dismiss a duplicative complaint with prejudice to prevent a plaintiff from

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“fragmenting a single cause of action and litigating piecemeal the issues which could

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have been resolved in one action.” Adams, 487 F.3d at 694.

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In the present case, the instant petition challenges the same issues already being

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adjudicated by the court in case number “1:14-cv-00924 AWI MJS HC.” Accordingly, the

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Court recommends the instant petition be dismissed as duplicative.

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RECOMMENDATION
Therefore it is RECOMMENDED that the petition for writ of habeas corpus be
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DISMISSED as duplicative. Further, the Court ORDERS the Clerk of Court to assign a

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District Court Judge to the present matter.

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These findings and recommendations are submitted to the United States District

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Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636

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(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court,

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Eastern District of California. Within thirty (30) days after being served with a copy,

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Petitioner may file written objections with the Court and serve a copy on all parties. Such

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a document should be captioned "Objections to Magistrate Judge's Findings and

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Recommendations." The Court will then review the Magistrate Judge's ruling pursuant to

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28 U.S.C. § 636 (b)(1)(c). Petitioner is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court's order. Martinez v. Ylst,

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951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

November 21, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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