Thomas v. Davis
Filing
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FINDINGS and RECOMMENDATIONS to Dismiss 1 Petition for Writ of Habeas Corpus as Duplicative of Earlier Filed Petition; ORDER Directing Clerk of Court to Assign District Judge to the Present Matter signed by Magistrate Judge Michael J. Seng on 01/26/2015. Referred to Judge O'Neill; Objections to F&R due by 3/2/2015. (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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Case No. 1:15-cv-00126 MJS (HC)
MICHAEL EUGENE THOMAS,
FINDINGS AND RECOMMENDATION TO
Petitioner, DISMISS PETITION FOR WRIT OF
HABEAS CORPUS AS DUPLICATIVE OF
EARLIER FILED PETITION
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v.
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RONALD DAVIS, Warden,
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 January 20, 2015, Petitioner filed a federal petition for writ of habeas corpus.
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That petition was assigned case number “1:15-cv-00119 SAB HC,” and is currently
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pending before the Court. In it, Petitioner presents two claims relating to his March, 1989
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conviction: that the state court lacked jurisdiction; and, that there were defects in the
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information and other documents filed in the case.
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On January 20, 2015, Petitioner filed a second federal petition for writ of habeas
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corpus. This petition has been assigned case number “1:15-cv-0126 MJS HC.” In the
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instant petition, Petitioner presents similar, if not identical, jurisdictional challenges to his
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1989 state court conviction. (Pet. at 5, ECF No. 1.)
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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.
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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.”
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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.
Id.
Second, the court determines
Adams, 487 F.3d at 691 (citing
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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 “1:15-cv-00119 SAB HC.” The Court
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recommends the instant petition be dismissed as duplicative.
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///
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RECOMMENDATION
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It is RECOMMENDED that the petition for writ of habeas corpus be DISMISSED
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as duplicative. Further, the Court ORDERS the Clerk of Court to assign a District Court
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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 result in the waiver of rights on appeal. Wilkerson v. Wheeler, __
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F.3d __, __, No. 11-17911, 2014 WL 6435497, at *3 (9th Cir. Nov. 18, 2014) (citing
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Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
January 26, 2015
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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